61977CJ0061_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 61/77
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOHN TEMPLE LANG, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
SUPPORTED BY
KINGDOM OF THE NETHERLANDS, REPRESENTED BY G . W . MAAS GEESTERANUS, LEGAL ADVISER AT THE MINISTRY FOR FOREIGN AFFAIRS, ACTING AS AGENT, ASSISTED BY M . J . KUIPER, PRINCIPAL ADMINISTRATOR IN THE LEGAL ADVISERS '
DEPARTMENT OF THE MINISTRY FOR AGRICULTURE AND FISHERIES, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE NETHERLANDS EMBASSY,
INTERVENER,
V
IRELAND, REPRESENTED BY LIAM J . LYSAGHT, CHIEF STATE SOLICITOR, ACTING AS AGENT, ASSISTED BY R . J . O ' HANLON, S.C ., WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE IRISH EMBASSY,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT, BY INTRODUCING CERTAIN RESTRICTIVE MEASURES IN THE SEA FISHERIES SECTOR, IRELAND HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY,
Grounds
1BY APPLICATION OF 13 MAY 1977, THE COMMISSION HAS BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT, IN APPLYING CERTAIN RESTRICTIVE MEASURES IN THE SEAS FISHERIES SECTOR, IRELAND HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .
BACKGROUND TO THE DISPUTE, CONNEXION WITH CASE 88/77 AND THE INTERIM MEASURES
2THE PARTIES ARE NOT IN DISPUTE REGARDING THE UNDERLYING FACTS OF THE CASE .
3THE FIRST OF THESE IS THAT, AT ITS MEETING IN THE HAGUE ON 30 OCTOBER 1976, THE COUNCIL ADOPTED A RESOLUTION ( HEREINAFTER CALLED ' THE HAGUE RESOLUTION ' ). WHICH WAS FORMALLY APPROVED ON 3 NOVEMBER 1976, WHEREBY IT WAS AGREED THAT, WITH EFFECT FROM 1 JANUARY 1977, THE MEMBER STATES WOULD, BY CONCERTED ACTION, EXTEND THE LIMITS OF THEIR FISHING ZONES TO 200 MILES OFF THEIR NORTH SEA AND NORTH ATLANTIC COASTS .
4IN THAT RESOLUTION, THE COUNCIL LAID DOWN THAT, AS FROM THE SAME DATE, THE EXPLOITATION BY THE FISHING VESSELS OF THIRD COUNTRIES OF FISHERY RESOURCES SITUATED IN THESE ZONES WOULD BE GOVERNED BY AGREEMENTS BETWEEN THE COMMUNITY AND THE THIRD COUNTRIES CONCERNED AND AT THE SAME TIME DECIDED ON THE PRINCIPLE OF CONCERTED ACTION BY THE MEMBER STATES FOR THE PURPOSE OF FUTURE PROCEEDINGS OF THE COMPETENT INTERNATIONAL FISHERIES BODIES .
5FURTHERMORE, THE COUNCIL ( IN ANNEX VI TO THE RESOLUTION ) REFERRED TO CERTAIN ASPECTS OF THE COMMUNITY ' S INTERNAL FISHERIES SYSTEM AND, MORE PARTICULARLY, NOTED THE NEED TO EVOLVE COMMON MEASURES FOR THE CONSERVATION OF RESOURCES WITHOUT PREJUDICE TO THE POSSIBILITY THAT THE MEMBER STATES COULD, IN CONJUNCTION WITH THE COMMISSION, ADOPT THE APPROPRIATE INTERIM MEASURES PENDING THE ENTRY INTO FORCE OF COMMON REGULATIONS .
6WITHIN THE FRAMEWORK OF THE SAME RESOLUTION THE COUNCIL DECLARED ITS INTENTION SO TO APPLY THE PROVISIONS OF THE COMMON FISHERIES POLICY AS TO SECURE THE CONTINUED AND PROGRESSIVE DEVELOPMENT OF THE IRISH FISHING INDUSTRY .
7SUBSEQUENTLY, THE COUNCIL GAVE FRESH CONSIDERATION TO THE ESTABLISHMENT OF A COMMUNITY SYSTEM FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES ON THE BASIS OF A PROPOSAL FOR A REGULATION SUBMITTED BY THE COMMISSION ON 8 OCTOBER 1976 ( OJ C 255, P . 3 ).
8ON 3 DECEMBER 1976 THE COMMISSION, IN VIEW OF THE DIFFICULTIES WHICH HAD ARISEN, SUBMITTED A PROPOSAL CONCERNED ONLY WITH THE INTRODUCTION OF INTERIM MEASURES WHICH, SUBSEQUENTLY, IT REPEATEDLY AMENDED IN ACCORDANCE WITH THE DIFFERENCES OF OPINION WHICH AROSE WITHIN THE COUNCIL .
9IT IS TO BE NOTED THAT THE IRISH GOVERNMENT TOOK AN ACTIVE PART IN THE WORK OF THE COUNCIL ON THIS QUESTION AND, ON 13 DECEMBER 1976, SUBMITTED ADDITIONAL PROPOSALS TO SUPPLEMENT THE CONSERVATION MEASURES PUT FORWARD .
10THESE PROPOSALS CONTAINED A NUMBER OF PROVISIONS, INCLUDING ONE FOR THE EXCLUSION OF FACTORY SHIPS, THE CREATION OF SPECIAL CONSERVATION ZONES FOR CERTAIN STOCKS, THE PROHIBITION OF CERTAIN METHODS OF FISHING AND THE EXCLUSION OF FISHING BOATS OF OVER 85 FEET OR 1 000 HORSE-POWER FROM AN AREA EXTENDING 20 MILES FROM THE COAST .
11AT THIS STAGE OF THE PROCEEDINGS, THE IRISH DELEGATION REPEATEDLY DREW THE COUNCIL ' S ATTENTION TO THE URGENT NEED TO TAKE CONSERVATION MEASURES AND MADE IT CLEAR THAT, IN THE ABSENCE OF EARLY AGREEMENT, IRELAND WOULD FIND ITSELF COMPELLED TO ACT UNILATERALLY .
12AS THIS WARNING WAS REPEATED WITH SOME FORCE DURING THE MEETING OF THE COUNCIL ON 8 AND 9 FEBRUARY 1977 ( WHICH, TOO, PROVED FRUITLESS ) THE COMMISSION, IN A MESSAGE DATED 11 FEBRUARY 1977, DREW THE ATTENTION OF THE IRISH GOVERNMENT TO THE FACT THAT THE HAGUE RESOLUTION PROVIDES THAT BEFORE ADOPTING CONSERVATION MEASURES A MEMBER STATE MUST HAVE CONSULTED AND SOUGHT THE APPROVAL OF THE COMMISSION, ADDING THAT DISCUSSIONS IN THE COUNCIL ARE NO SUBSTITUTE FOR THAT PROCEDURE .
13IN A LETTER DATED 14 FEBRUARY 1977, THE MINISTER FOR FOREIGN AFFAIRS OF IRELAND, AFTER REFERRING TO THE PROPOSALS SUBMITTED BY HIS COUNTRY ON 13 DECEMBER 1976, INFORMED THE COMMISSION THAT ' THE GOVERNMENT HAS RELUCTANTLY DECIDED THAT IT CAN NO LONGER DELAY ON THIS MATTER AND THAT IT MUST NOW TAKE THE NECESSARY UNILATERAL CONSERVATION ACTION OF AN INTERIM KIND '
AND, AFTER GIVING A BRIEF INDICATION OF THE SUBSTANCE OF THE MEASURES ADOPTED, STATED THAT THE ORDERS GIVING EFFECT TO THEM WOULD BE MADE BY THE MINISTER FOR FISHERIES ON THE FOLLOWING DAY, 15 FEBRUARY .
14IT WAS IN FACT ON 16 FEBRUARY THAT THE IRISH MINISTER FOR FISHERIES MADE TWO ORDERS THE FIRST OF WHICH, ENTITLED ' SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ORDER 1977 '
WAS DESIGNED TO PROHIBIT THE ENTRY OF SEA FISHING BOATS AND FISHING IN A MARITIME AREA SITUATED WITHIN THAT PORTION OF THE EXCLUSIVE FISHERY LIMITS OF IRELAND WHICH LIES SOUTH OF THE PARALLEL OF 56* 30 '
NORTH LATITUDE, EAST OF THE MERIDIAN OF 12* WEST LONGITUDE AND NORTH OF THE PARALLEL OF 50* 30 '
NORTH LATITUDE . THE SECOND ORDER ENTITLED ' SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ( NO 2 ) ORDER 1977 '
EXEMPTS FROM THAT PROHIBITION SEA FISHING BOATS NOT EXCEEDING 33 METRES IN REGISTERED LENGTH OR HAVING AN ENGINE POWER NOT EXCEEDING 1 100 BRAKE HORSE-POWER . ( THESE ORDERS ARE HEREINAFTER REFERRED TO AS ' THE IRISH MEASURES ' .)
15AFTER A MEETING HAD BEEN HELD AS A MATTER OF URGENCY BETWEEN THE REPRESENTATIVES OF THE GOVERNMENTS OF IRELAND AND THE OTHER MEMBER STATES CONCERNED THE COMMISSION, BY LETTER OF 22 FEBRUARY 1977, FIRMLY EXPRESSED DISAPPROVAL OF THE IRISH MEASURES AND ASKED THE GOVERNMENT TO POSTPONE THE DATE OF THEIR APPLICATION PENDING THE OUTCOME OF THE FORTHCOMING DISCUSSIONS IN THE COUNCIL WHICH, AT THAT TIME, HAD EVERY APPEARANCE OF REACHING AN EARLY CONCLUSION .
16AT THE MEETING ON 25 MARCH 1977 IT WAS CLEAR THAT THERE WAS IN FACT A LARGE MEASURE OF AGREEMENT AMONGST THE MEMBERS OF THE COUNCIL, INCLUDING IRELAND, ON THE LATEST PROPOSALS OF THE COMMISSION BUT A DECISION COULD NOT BE TAKEN ON THAT OCCASION BECAUSE OF THE OPPOSITION EXPRESSED BY ONE OF THE MEMBER STATES .
17FACED WITH THIS SETBACK, THE IRISH GOVERNMENT, BY LETTER OF 4 APRIL 1977, INFORMED THE COMMISSION THAT THE ORDERS OF 16 FEBRUARY 1977 WOULD BE MADE EFFECTIVE FROM 10 APRIL 1977 .
18FOLLOWING THIS UNILATERAL ACTION BY IRELAND THE COMMISSION INITIATED THE PRELIMINARY PROCEDURE IN ARTICLE 169 OF THE EEC TREATY WHICH LED TO THE MATTER COMING BEFORE THE COURT OF JUSTICE .
CONNEXION WITH CASE 88/77
19BY ORDER OF 7 JULY 1977, IN RELATION TO A PROSECUTION BROUGHT AGAINST THE MASTERS OF CERTAIN NETHERLANDS TRAWLERS WHO WERE CHARGED WITH HAVING CONTRAVENED THE PROHIBITIONS ARISING UNDER THE ORDERS OF 16 FEBRUARY 1977, THE DISTRICT COURT FOR THE DISTRICT COURT AREA OF CORK CITY ( IRELAND ) REFERRED CERTAIN QUESTIONS TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING WHICH WOULD ENABLE IT TO ASSESS THE COMPATIBILITY OF THOSE MEASURES WITH COMMUNITY LAW .
20IN CONNEXION WITH THAT CASE, WHICH WAS ENTERED AT THE COURT OF JUSTICE UNDER NO 88/77, OBSERVATIONS WERE SUBMITTED BY THE PARTIES TO THE MAIN ACTION, BY THE GOVERNMENTS OF THE FRENCH REPUBLIC AND OF THE KINGDOM OF THE NETHERLANDS AND BY THE COMMISSION .
21ALTHOUGH THE QUESTIONS CONSIDERED IN THAT CASE ARE SUBSTANTIALLY THE SAME AS THE LEGAL ISSUES RAISED IN THE PRESENT PROCEEDINGS, THE DEFENDANTS IN THE MAIN ACTION IN THE PROSECUTION BEFORE THE CORK DISTRICT COURT AND THE FRENCH GOVERNMENT HAVE, HOWEVER, ADVANCED CERTAIN SPECIAL ARGUMENTS WHICH CLEARLY OUGHT TO BE TAKEN INTO ACCOUNT IN THE PRESENT CASE IN ORDER THAT ALL ASPECTS OF THE DISPUTE MAY BE FULLY EXAMINED .
22AS ALL THE PARTIES TO THE PRESENT PROCEEDINGS WERE ALSO INVOLVED IN CASE 88/77, THIS COURSE RESPECTS THE RIGHTS OF THE PARTIES .
INTERIM MEASURES
23FINALLY IT SHOULD BE NOTED THAT, IN LODGING ITS APPLICATION UNDER ARTICLE 169 OF THE EEC TREATY, THE COMMISSION REQUESTED THE COURT, UNDER ARTICLE 186 OF THE TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE, TO PRESCRIBE INTERIM MEASURES AND TO ORDER THE IRISH GOVERNMENT TO SUSPEND THE MEASURES IN DISPUTE UNTIL THE COURT OF JUSTICE DELIVERED ITS FINAL JUDGMENT .
24THE COURT GRANTED THIS REQUEST BY SUCCESSIVE ORDERS OF 22 MAY, 21 JUNE AND 13 JULY 1977 (( 1977 ) ECR 937 AND 1411 ) THE LAST OF WHICH ORDERED IRELAND TO SUSPEND THE CONTESTED MEASURES BY 18 JULY 1977 AT THE LATEST .
25THE IRISH GOVERNMENT HAS ANNOUNCED THAT IT HAS REFRAINED FROM IMPLEMENTING THE CONTESTED MEASURES AS FROM THE DATE SET IN THE ORDER OF THE COURT AFTER GIVING THE NECESSARY INSTRUCTIONS TO THE COMPETENT AUTHORITIES AND THAT NOTHING MORE NEEDED TO BE DONE BECAUSE THE ORDER ' HAS HAD THE FORCE OF LAW IN IRELAND '
AS FROM THE DATE LAID DOWN THEREIN FOR IT TO COME INTO EFFECT ' AND CONSEQUENTLY HAS HAD THE EFFECT OF SUSPENDING, IN ACCORDANCE WITH ITS TERMS, THE TWO SEA FISHERIES ORDERS AS FROM THAT TIME ' .
26ACCORDING TO THE EXPLANATIONS GIVEN, THIS FOLLOWS FROM THE PROVISIONS OF THE IRISH CONSTITUTION AND FROM THE EUROPEAN COMMUNITIES ACT 1972, WHICH GIVES THE LAW OF THE COMMUNITIES ( INCLUDING THE JUDGMENTS AND ORDERS OF THE COURT OF JUSTICE ) PRECEDENCE OVER DOMESTIC IRISH LAW .
27THE COMMISSION, TO WHICH THIS STATEMENT WAS IN TURN COMMUNICATED, RAISED NO OBJECTION TO IT .
THE LAW TO BE APPLIED
28IN COMMON WITH ALL OTHER ECONOMIC ACTIVITIES, FISHERIES COME UNDER THE EEC TREATY AND, MORE PARTICULARLY, ARE TREATED AS AGRICULTURE UNDER THE TERMS OF ARTICLE 38 OF THE TREATY AND, UNDER THAT ARTICLE, ARE THUS COVERED BY THE PROVISION OF A COMMON POLICY .
29THE FIRST RULES ON FISHING QUESTIONS WERE LAID DOWN IN TWO REGULATIONS OF THE COUNCIL NAMELY REGULATION ( EEC ) NO 2141/70 OF 20 OCTOBER 1970 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY, ON THE BASIS OF ARTICLES 7, 42, 43 AND 235 OF THE EEC TREATY ( OJ, ENGLISH SPECIAL EDITION 1970 ( III ), P . 703 ), AND IN REGULATION ( EEC ) NO 2142/70 OF THE SAME DATE ON THE COMMON ORGANIZATION OF THE MARKET IN FISHERY PRODUCTS, BASED ON ARTICLES 42 AND 43 ( IBID ., P . 707 ).
30ARTICLES 98 TO 103 OF THE ACT OF ACCESSION MADE CERTAIN ADDITIONS TO THE SYSTEM THUS DEFINED AND THESE ARTICLES TOGETHER FORMED CHAPTER 3 OF TITLE II RELATING TO AGRICULTURE .
31OF THESE PROVISIONS SPECIAL ATTENTION MUST BE PAID TO ARTICLE 102, WHICH READS : ' FROM THE SIXTH YEAR AFTER ACCESSION AT THE LATEST, THE COUNCIL, ACTING ON A PROPOSAL FROM THE COMMISSION, SHALL DETERMINE CONDITIONS FOR FISHING WITH A VIEW TO ENSURING PROTECTION OF THE FISHING GROUNDS AND CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA ' .
32FOLLOWING THE ENLARGEMENT OF THE COMMUNITY THE PROVISIONS RELATING TO FISHERIES WERE REPEATED IN TWO REGULATIONS OF THE COUNCIL, PROMULGATED ON THE SAME BASIS AS THE PREVIOUS REGULATIONS, IN ADDITION TO THE ACT OF ACCESSION, NAMELY NO 100/76 OF 19 JANUARY 1976 ON THE COMMON ORGANIZATION OF THE MARKET IN FISHERY PRODUCTS ( OJ L 20, P . 1 ) AND REGULATION ( EEC ) NO 101/76 OF THE SAME DATE LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY ( IBID ., P ., 19 ).
33ARTICLE 1 OF THE LATTER REGULATION READS :
' COMMON RULES SHALL BE LAID DOWN FOR FISHING IN MARITIME WATERS AND SPECIFIC MEASURES SHALL BE ADOPTED FOR APPROPRIATE ACTION AND THE CO-ORDINATION OF STRUCTURAL POLICIES OF MEMBER STATES FOR THE FISHING INDUSTRY TO PROMOTE HARMONIOUS AND BALANCED DEVELOPMENT OF THIS INDUSTRY WITHIN THE GENERAL ECONOMY AND TO ENCOURAGE THE RATIONAL USE OF THE BIOLOGICAL RESOURCES OF THE SEA AND OF INLAND WATERS ' .
34ARTICLE 2 ( 1 ) READS :
' RULES APPLIED BY EACH MEMBER STATE IN RESPECT OF FISHING IN THE MARITIME WATERS COMING UNDER ITS SOVEREIGNTY OR WITHIN ITS JURISDICTION SHALL NOT LEAD TO DIFFERENCES IN TREATMENT OF OTHER MEMBER STATES .
' MEMBER STATES SHALL ENSURE IN PARTICULAR EQUAL CONDITIONS OF ACCESS TO AND USE OF THE FISHING GROUNDS SITUATED IN THE WATERS REFERRED TO IN THE PRECEDING SUBPARAGRAPH FOR ALL FISHING VESSELS FLYING THE FLAG OF A MEMBER STATE AND REGISTERED IN COMMUNITY TERRITORY ' .
35FINALLY ARTICLE 4 OF THE REGULATION PROVIDES AS FOLLOWS :
' WHERE THERE IS A RISK OF OVER-FISHING OF CERTAIN STOCKS IN THE MARITIME WATERS REFERRED TO IN ARTICLE 2, OF ONE OR OTHER MEMBER STATE, THE COUNCIL, ACTING IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR IN ARTICLE 43 ( 2 ) OF THE TREATY ON A PROPOSAL FROM THE COMMISSION MAY ADOPT THE NECESSARY CONSERVATION MEASURES .
IN PARTICULAR, THESE MEASURES MAY INCLUDE RESTRICTIONS RELATING TO THE CATCHING OF CERTAIN SPECIES, TO AREAS, TO FISHING SEASONS, TO METHODS OF FISHING AND TO FISHING GEAR ' .
36THE SPECIAL PROBLEM OF THE CONSERVATION OF RESOURCES WAS, AT THE SUGGESTION OF THE COMMISSION, MENTIONED IN THE HAGUE RESOLUTION, REFERRED TO ABOVE, WHICH WAS ADOPTED FOR THE PURPOSE OF THE CONCERTED EXTENSION OF THE FISHING ZONES TO 200 MILES OFF THE NORTH SEA AND NORTH ATLANTIC COASTS .
37ANNEX VI TO THE RESOLUTION REVEALS THAT ON THAT OCCASION THE COUNCIL AGREED ON A STATEMENT BY THE COMMISSION WORDED AS FOLLOWS :
' PENDING THE IMPLEMENTATION OF THE COMMUNITY MEASURES AT PRESENT IN PREPARATION RELATING TO THE CONSERVATION OF RESOURCES, THE MEMBER STATES WILL NOT TAKE ANY UNILATERAL MEASURES IN RESPECT OF THE CONSERVATION OF RESOURCES .
HOWEVER, IF NO AGREEMENT IS REACHED FOR 1977 WITHIN THE INTERNATIONAL FISHERIES COMMISSIONS AND IF SUBSEQUENTLY NO AUTONOMOUS COMMUNITY MEASURES COULD BE ADOPTED IMMEDIATELY, THE MEMBER STATES COULD THEN ADOPT, AS AN INTERIM MEASURE AND IN A FORM WHICH AVOIDS DISCRIMINATION, APPROPRIATE MEASURES TO ENSURE THE PROTECTION OF RESOURCES SITUATED IN THE FISHING ZONES OFF THEIR COASTS .
BEFORE ADOPTING SUCH MEASURES, THE MEMBER STATE CONCERNED WILL SEEK THE APPROVAL OF THE COMMISSION, WHICH MUST BE CONSULTED AT ALL STAGES OF THE PROCEDURES .
' ANY SUCH MEASURES SHALL NOT PREJUDICE THE GUIDELINES TO BE ADOPTED FOR THE IMPLEMENTATION OF THE COMMUNITY PROVISIONS ON THE CONSERVATION OF RESOURCES ' .
38THE IRISH GOVERNMENT HAS RAISED AN OBJECTION CONCERNING THE GEOGRAPHICAL AREA OF APPLICATION OF REGULATION ( EEC ) NO 101/76 .
39THE IRISH GOVERNMENT REFERS TO THE PROVISION IN ARTICLE 2 ( 3 ) OF REGULATION ( EEC ) NO 101/76, WHICH READS : ' THE MARITIME WATERS REFERRED TO IN THIS ARTICLE SHALL BE THOSE WHICH ARE SO DESCRIBED BY THE LAWS IN FORCE IN EACH MEMBER STATE ', AND CONTENDS THAT THE REGULATION IN QUESTION TOOK EFFECT ONLY IN RELATION TO IRISH MARITIME WATERS AS THEY WERE DEFINED AT THE TIME OF ENTRY INTO FORCE OF THE REGULATION, PRIOR TO THE EXTENSION OF THE FISHING ZONES ON 1 JANUARY 1977 .
40THIS WOULD MEAN THAT THE PROVISIONS OF THE REGULATION ARE NOT APPLICABLE TO THE MARITIME WATERS COVERED BY THE CONTESTED MEASURES AND THAT ONLY AN APPROPRIATE AMENDMENT OF REGULATION ( EEC ) NO 101/76 CAN EXTEND THE REGULATION TO COVER THE MARITIME WATERS INVOLVED .
41THE COMMISSION DESCRIBES THIS CONTENTION AS ' SURPRISING '
AND CONSIDERS IT TO BE INCONSISTENT WITH THE INTERPRETATION WHICH MUST BE PLACED ON THE WORDING BOTH OF ARTICLES 100 TO 103 OF THE ACT OF ACCESSION AND ON THE PROVISIONS OF REGULATION ( EEC ) NO 101/76 AND AS INCONSISTENT WITH THE ATTITUDE ADOPTED BY THE IRISH GOVERNMENT AT THE TIME OF THE DRAFTING IN THE COUNCIL OF THE HAGUE RESOLUTION AND OF A NUMBER OF REGULATIONS ON THE SUBJECT .
42THE COMMISSION AGAIN CALLS ATTENTION TO THE FACT THAT THE EFFECT OF THE INTERPRETATION PLACED BY THE IRISH GOVERNMENT ON THE REFERENCE CONTAINED IN ARTICLE 2 ( 3 ) OF REGULATION ( EEC ) NO 101/76 WOULD BE TO RESTRICT THE FIELD OF APPLICATION OF THE COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY TO A SMALL PROPORTION OF THE SEAS UNDER THE JURISDICTION OF THE MEMBER STATES AND THUS PREVENT THE COUNCIL FROM INTRODUCING CONSERVATION MEASURES APPLICABLE OUTSIDE THE OLD 12-MILE LIMIT .
43THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS CLAIMS, ON THIS POINT, THAT THE GEOGRAPHICAL AREA OF APPLICATION OF THE RULES OF COMMUNITY LAW IS DEFINED BY THE TOTAL AREA OF THE EUROPEAN TERRITORIES OF THE MEMBER STATES AND THAT, ACCORDINGLY, ANY ALTERATION WHICH A MEMBER STATE MAKES IN THE EXTENT OF ITS JURISDICTION ALSO REPRESENTS AN ALTERATION OF THE LIMITS OF THE COMMON MARKET .
44THIS WAS THE UNDERLYING CONCEPTION IN ARTICLE 2 ( 3 ) OF REGULATION ( EEC ) NO 101/76, WHICH APPLIES TO MARITIME WATERS COMING WITHIN THE JURISDICTION OF A MEMBER STATE UNDER ITS LAWS, REGARDLESS OF THEIR DATE OF ENTRY INTO FORCE .
45IN ORDER TO DETERMINE THE GEOGRAPHICAL AREA TO WHICH REGULATION ( EEC ) NO 101/76 APPLIES, ITS PROVISIONS MUST BE INTERPRETED IN THE LIGHT OF THE LEGAL CONTEXT IN WHICH, BOTH AS REGARDS ITS SUBJECT-MATTER AND ITS PURPOSE, THE REGULATION APPEARED .
46AS INSTITUTIONAL ACTS ADOPTED ON THE BASIS OF THE TREATY, THE REGULATIONS APPLY IN PRINCIPLE TO THE SAME GEOGRAPHICAL AREA AS THE TREATY ITSELF .
47ARTICLE 2 ( 3 ) OF REGULATION ( EEC ) NO 101/76 MUST THEREFORE BE UNDERSTOOD AS REFERRING TO THE LIMITS OF THE FIELD OF APPLICATION OF COMMUNITY LAW IN ITS ENTIRETY, AS THAT FIELD MAY AT ANY GIVEN TIME BE CONSTITUTED .
48CONSEQUENTLY, THE REFERENCE IN THAT PROVISION TO THE ' LAWS IN FORCE '
IN THE VARIOUS MEMBER STATES AS DESCRIBING THE MARITIME WATERS COMING UNDER THEIR SOVEREIGNTY OR WITHIN THEIR JURISDICTION MUST BE INTERPRETED AS REFERRING TO THE LAWS APPLICABLE FROM TIME TO TIME DURING THE PERIOD OF VALIDITY OF THE REGULATION CONCERNED .
49THIS INTERPRETATION IS THE ONLY ONE WHICH ACCORDS WITH THE SUBJECT MATTER AND PURPOSE OF THE REGULATION, WHICH IS TO ESTABLISH A COMMON SYSTEM FOR FISHING THROUGHOUT THE WHOLE OF THE MARITIME WATERS BELONGING TO THE MEMBER STATES .
50IT FOLLOWS THAT ANY EXTENSION OF THE MARITIME ZONES IN QUESTION AUTOMATICALLY MEANS PRECISELY THE SAME EXTENSION OF THE AREA TO WHICH THE REGULATION APPLIES .
51IN CONSEQUENCE, THE INTERPRETATION PLACED ON ARTICLE 2 ( 3 ) OF REGULATION ( EEC ) NO 101/76 BY THE IRISH GOVERNMENT MUST BE REJECTED .
SUBSTANCE
52IT IS ACCEPTED BY ALL THE PARTIES IN THE TWO CASES THAT, AT THE TIME OF THE MEASURES WHICH ARE THE SUBJECT OF THE DISPUTE, THE INTRODUCTION OF CONSERVATION MEASURES FOR THE FISHERY RESOURCES WAS ESSENTIAL AND INDEED URGENT IN THE WATERS COMING WITHIN THE JURISDICTION OF IRELAND .
53NOR IS IT IN DISPUTE THAT THERE WAS A CONTINUED NEED THEREFOR DESPITE AN APPRECIABLE REDUCTION IN THE CATCHES OF CERTAIN THIRD STATES IN THE MARITIME AREA CONCERNED AS THE RESULT OF THE EXTENSION OF THE FISHING ZONE ON 1 JANUARY 1977 AND OF THE PROVISIONS ADOPTED BY THE COMMUNITY .
54IN CONSEQUENCE THE DISPUTE RESOLVES ITSELF INTO FOUR GROUPS OF ARGUMENTS, SUBMITTED WITH VARYING EMPHASIS BY THE PARTIES APPEARING IN THE PROCEEDINGS IN EACH OF THE TWO CASES, AND THESE ARGUMENTS RELATE TO
- THE JURISDICTION OF IRELAND ;
- THE ACTION TAKEN IN THIS INSTANCE BY THE IRISH GOVERNMENT ;
- THE QUESTION WHETHER THE IRISH MEASURES CAN BE REGARDED AS GENUINE CONSERVATION MEASURES ; AND
- THE QUESTION WHETHER, IN INTRODUCING THESE MEASURES, IRELAND CONTRAVENED THE NON-DISCRIMINATION RULE ENSHRINED IN ARTICLE 7 OF THE TREATY AND IN REGULATION ( EEC ) NO 101/76 .
55CONSIDERATION MUST FIRST BE GIVEN TO THE QUESTION OF JURISDICTION, WHICH HAS A BEARING ON ALL THE OTHER SUBMISSIONS, INCLUDING THE POSSIBILITY OF A BREACH OF THE NON-DISCRIMINATION RULE .
JURISDICTION OF THE IRISH STATE
56THE DEFENDANTS IN THE MAIN ACTION IN CASE 88/77 CONTEND THAT THE IRISH STATE HAS NO AUTHORITY TO ADOPT CONSERVATION MEASURES ON A NATIONAL BASIS SINCE, IN THEIR VIEW, THOSE MEASURES NOW COME WITHIN THE JURISDICTION ASSUMED BY THE COMMUNITY .
57IN SUPPORT OF THIS CONTENTION THEY REFER IN PARTICULAR TO ARTICLE 102 OF THE ACT OF ACCESSION, UNDER WHICH THE POWER IS RESERVED TO THE COMMUNITY INSTITUTIONS TO DETERMINE CONDITIONS FOR FISHING WITH A VIEW TO ENSURING PROTECTION OF THE FISHING GROUNDS AND CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA ; THE REGULATIONS ( EEC ) NOS 100/76 AND 101/76 ON THE SUBJECT OF THE COMMON ORGANIZATION OF THE MARKET IN FISHERY PRODUCTS AND THE COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY ; AND THE HAGUE RESOLUTION, IN THAT IT PROVIDES FOR THE EXTENSION OF THE FISHING ZONES ' BY CONCERTED ACTION ' .
58THE JUDGMENT OF THE COURT OF 14 JULY 1976 IN CASES 3, 4 AND 6/76, KRAMER AND OTHERS ( 1976 ) ECR 1279 DOES NOT DISPOSE OF THE ARGUMENT WHICH THEY PUT FORWARD SINCE IT RECOGNIZED THE JURISDICTION OF MEMBER STATES IN THE MATTER ONLY BY VIRTUE OF INTERNATIONAL COMMITMENTS PREVIOUSLY UNDERTAKEN .
59THE FRENCH GOVERNMENT, IN THE STATEMENT LODGED IN CASE 88/77, EMPHASIZES THE FACT THAT THE FISHING POLICY IS A COMMUNITY ONE, AS IS MADE CLEAR BOTH IN ARTICLE 38 ( 1 ) OF THE EEC TREATY AND BY THE SUCCESSIVE REGULATIONS AND THE FACT THAT THIS IS CONFIRMED AS THE POSITION IN LAW, PARTICULARLY AS REGARDS THE CONSERVATION MEASURES, BY ARTICLE 102 OF THE ACT OF ACCESSION AND THE HAGUE RESOLUTION .
60THIS STANDPOINT ALSO HAS THE AUTHORITY OF THE COURT ' S DECISION IN THE KRAMER CASE .
61THE POWER TO ESTABLISH PERMANENT RULES FOR FISHING BELONGS THEREFORE TO THE COMMUNITY AS SUCH AND, ACCORDING TO THE SETTLED CASE-LAW OF THE COURT, AS EXPRESSED IN PARTICULAR IN PARAGRAPH 31 OF THE DECISION IN THE JUDGMENT OF 31 MARCH 1971 IN CASE 22/70, COMMISSION V COUNCIL ( 1971 ) ECR 263, THIS POWER IS AN EXCLUSIVE ONE .
62THE CONCLUSION WHICH THE FRENCH GOVERNMENT DRAWS FROM THESE CONSIDERATIONS IS THAT ALL UNILATERAL MEASURES OF THE MEMBER STATES IN THAT SECTOR OFFEND AGAINST COMMUNITY LAW ONCE THE COMMUNITY HAS ASSUMED ITS FULL POWERS OF THE TRANSITIONAL PERIOD PROVIDED FOR BY ARTICLE 102 OF THE ACT OF ACCESSION HAS EXPIRED .
63AS THE COURT HAD ALREADY HELD IN THE KRAMER JUDGMENT OF 14 JULY 1976, THE COMMUNITY HAS THE POWER TO TAKE CONSERVATION MEASURES BOTH INDEPENDENTLY AND IN THE FORM OF CONTRACTUAL COMMITMENTS WITH NON- MEMBER STATES OR UNDER THE AUSPICES OF INTERNATIONAL ORGANIZATIONS .
64IN SO FAR AS THIS POWER HAS BEEN EXERCISED BY THE COMMUNITY, THE PROVISIONS ADOPTED BY IT PRECLUDE ANY CONFLICTING PROVISIONS BY THE MEMBER STATES .
65ON THE OTHER HAND, SO LONG AS THE TRANSITIONAL PERIOD LAID DOWN IN ARTICLE 102 OF THE ACT OF ACCESSION HAS NOT EXPIRED AND THE COMMUNITY HAS NOT YET FULLY EXERCISED ITS POWER IN THE MATTER, THE MEMBER STATES ARE ENTITLED, WITHIN THEIR OWN JURISDICTION, TO TAKE APPROPRIATE CONSERVATION MEASURES WITHOUT PREJUDICE, HOWEVER, TO THE OBLIGATION TO CO-OPERATE IMPOSED UPON THEM BY THE TREATY, IN PARTICULAR ARTICLE 5 THEREOF .
66IT WAS THEREFORE WITH GOOD REASON THAT, IN ANNEX VI TO THE HAGUE RESOLUTION, AFTER STATING THAT IN PRINCIPLE THE MEMBER STATES WOULD NOT TAKE ANY UNILATERAL MEASURES PENDING THE IMPLEMENTATION OF THE COMMUNITY MEASURES, THE COUNCIL RECOGNIZED THAT SUCH MEASURES COULD BE ADOPTED, ON AN INTERIM BASIS, IF NO COMMUNITY MEASURES HAD BEEN ADOPTED IN TIME .
67IT IS CLEAR THEREFORE THAT, IN VIEW OF THE FAILURE OF THE COUNCIL AND THE IMPOSSIBILITY OF REACHING AN AGREED SOLUTION WITHIN IT, IRELAND WAS ENTITLED TO ADOPT CONSERVATION MEASURES FOR THE MARITIME WATERS WITHIN ITS JURISDICTION PROVIDED, HOWEVER, THAT THEY CONFORM TO THE REQUIREMENTS OF COMMUNITY LAW .
68ACCORDINGLY THE OBJECTION RAISED IN CASE 88/77 AS TO THE POWERS OF THE IRISH STATE AT THE MATERIAL TIME MUST BE DISMISSED .
DISCRIMINATORY CHARACTER OF THE IRISH MEASURES
69THE COMMISSION CONTENDS THAT, ALTHOUGH THE IRISH MEASURES ARE BASED ON APPARENTLY OBJECTIVE FACTORS, SUCH AS SIZE AND POWER OF BOATS, THEY ARE IN FACT DISCRIMINATORY ON TWO GROUNDS .
70IT WOULD APPEAR THAT THERE ARE SCARCELY ANY BOATS IN THE IRISH FISHING FLEET WHICH EXCEED THE LIMITS SPECIFIED IN THE CONTESTED ORDERS, APART FROM TWO BOATS ONE OF WHICH HAS CERTAINLY NEVER FISHED IN THE PROHIBITED AREA, WHEREAS THE MEASURE SERIOUSLY HANDICAPS THE FLEETS OF CERTAIN OTHER MEMBER STATES, IN PARTICULAR OF FRANCE AND OF THE NETHERLANDS .
71FURTHERMORE THE MEASURES CREATE DIFFERENCES OF TREATMENT BETWEEN THE VARIOUS MEMBER STATES IN THAT THE NETHERLANDS FISHING FLEET, WHICH IS MAINLY MADE UP OF LARGE BOATS IS WHOLLY CUT OFF FROM THE WATERS IN QUESTION AND THE SAME APPLIES, BUT TO A LESSER EXTENT, TO THE FRENCH FISHING FLEET WHEREAS, BECAUSE OF ITS COMPOSITION, THE BRITISH FISHING FLEET HAS ESCAPED ENTIRELY .
72THUS, BY THESE MEASURES, IRELAND HAS BREACHED THE GENERAL NON-DISCRIMINATION RULE IN ARTICLE 7 OF THE EEC TREATY AND THE PROVISIONS OF ARTICLE 2 ( 1 ) OP REGULATION ( EEC ) NO 101/76, TO WHICH REFERENCE WAS MADE IN ANNEX VI TO THE HAUGE RESOLUTION .
73 THESE STRICTURES WERE SUPPORTED BY THE FRENCH AND NETHERLANDS GOVERN-
MENTS, WHICH CONSIDER THAT AN ATTACK HAS IN THIS WAY BEEN MADE ON ONE OF THE INDISPENSABLE FOUNDATIONS OF THE COMMON FISHING POLICY .
74 THE DEFENDANTS IN THE MAIN ACTION IN CASE 88/77 ADVANCE THE SAME
ARGUMENTS AND EMPHASIZE THAT, IN CHOOSING A CONDITION BASED ON THE SIZE AND POWER OF BOATS, THE IRISH MEASURES DISCRIMINATE AGAINST LARGE BOATS IN THUS ABOLISHING THE ADVANTAGES ASSOCIATED WITH THE ECONOMIES OF SCALE ARISING OUT OF THE MODERNIZATION OF THE NETHERLANDS FISHING FLEET .
75 ON THE OTHER HAND THE IRISH GOVERNMENT POINTS OUT THAT THE CONTESTED
MEASURES ARE BASED ON TECHNICAL CONSIDERATIONS WHICH HAVE NOTHING WHATEVER TO DO WITH THE NATIONALITY OF THE BOATS .
76 THE VARIABLE EFFECT OF THESE MEASURES IS AN INEVITABLE RESULT OF THE
COMPOSITION OF THE VARIOUS NATIONAL FLEETS CONCERNED AND NOT OF THE CRITERIA ADOPTED WHICH CANNOT THEREFORE BE DESCRIBED AS DISCRIMINATORY .
77 THE IRISH GOVERNMENT CONSIDERS THAT THE ADVANTAGES WHICH IRISH FISHERMEN
MAY OBTAIN FROM THE MEASURES ADOPTED ARE JUSTIFIED BY THE FACT THAT THE COMMUNITY ITSELF HAS REPEATEDLY AND RIGHT UP TO THE HAGUE RESOLUTION, RECOGNIZED THE NEED TO ENCOURAGE THE GROWTH OF THE FISHING INDUSTRY IN IRELAND .
78 AS THE COURT HAS HAD OCCASION TO DECLARE IN OTHER CONTEXTS, IN PARTICULAR IN
ITS JUDGMENT OF 12 FEBRUARY 1974 IN CASE 152/73, SOTGIU V DEUTSCHE BUNDESPOST ( 1974 ) ECR 153 THE RULES REGARDING EQUALITY OF TREATMENT ENSHRINED IN COMMUNITY LAW FORBID NOT ONLY OVERT DISCRIMINATION BY REASON OF NATIONALITY BUT ALSO ALL COVERT FORMS OF DISCRIMINATION WHICH, BY THE APPLICATION OF OTHER CRITERIA OF DIFFERENTIATION, LEAD IN FACT TO THE SAME RESULT .
79 THIS CERTAINLY APPLIES IN THE CASE OF THE CRITERIA EMPLOYED IN THE CONTESTED
MEASURES THE EFFECT OF WHICH IS TO KEEP OUT OF IRISH WATERS A SUBSTANTIAL PROPORTION OF THE FISHING FLEETS OF OTHER MEMBER STATES WHICH HAVE TRADITIONALLY FISHED IN THOSE AREAS WHEREAS UNDER THE SAME MEASURES NO COMPARABLE OBLIGATION IS IMPOSED ON IRELAND ' S OWN NATIONALS .
80 THESE MEASURES ARE, ACCORDINGLY, CONTRARY BOTH TO ARTICLE 7 OF THE EEC
TREATY, WHICH PROHIBITS ANY DISCRIMINATION ON GROUNDS OF NATIONALITY, AND TO ARTICLE 2 ( 1 ) OF REGULATION ( EEC ) NO 101/76 UNDER WHICH RULES APPLIED BY EACH MEMBER STATE IN RESPECT OF FISHING IN THE MARITIME WATERS COMING UNDER ITS SOVEREIGNTY OR WITHIN ITS JURISDICTION SHALL NOT LEAD TO DIFFERENCES IN TREATMENT OF OTHER MEMBER STATES .
REMAINING SUBMISSIONS
81 THE COMMISSION, SUPPORTED BY THE FRENCH AND NETHERLANDS GOVERNMENTS,
FURTHER MAINTAINS THAT THE IRISH MEASURES CANNOT BE REGARDED AS GENUINE CONSERVATION MEASURES .
82 IT DOES NOT APPEAR NECESSARY TO RESOLVE THAT ISSUE SINCE IT HAS BEEN POSSIBLE
TO ESTABLISH THAT THE IRISH MEASURES ARE DISCRIMINATORY ON THE BASIS OF THE FOREGOING CONSIDERATIONS .
83 DURING THE PROCEEDINGS VARIOUS CRITICISMS HAVE BEEN MADE CONCERNING THE
CONDUCT OF THE IRISH GOVERNMENT AND OF THE DIFFICULTIES WHICH IT HAS PLACED IN THE WAY BOTH OF THE ATTAINMENT OF A COMMON FISHING POLICY AND OF THE PROTECTION OF THE COMMUNITY ' S INTERESTS IN THE NEGOTIATIONS WITH THIRD COUNTRIES .
84 THIS LAST POINT WAS SPECIALLY EMPHASIZED BY THE COMMISSION WHICH HAS
MADE THE EFFECT OF THE IRISH MEASURES ON THE EXTERNAL NEGOTIATIONS THE SUBJECT OF A SEPARATE GROUND OF COMPLAINT .
85 IN VIEW OF THE FOREGOING CONCLUSIONS IT IS UNNECESSARY TO GIVE A DECISION ON ALL THESE COMPLAINTS .
86 IN THIS CONNEXION IT IS SUFFICIENT TO REFER TO THE CONCLUSIONS REACHED BY THE COURT IN THE GROUNDS FOR ITS ORDER OF 22 MAY 1977 .
87 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT, WHILST THERE CAN CERTAINLY
BE NO DOUBT THAT, IN THE ABSENCE OF APPROPRIATE PROVISIONS AT COMMUNITY LEVEL, IRELAND WAS ENTITLED TO TAKE INTERIM CONSERVATION MEASURES AS REGARDS THE MARITIME WATERS COMING WITHIN ITS JURISDICTION, IT MUST BE RECOGNIZED THAT, BECAUSE OF THE DISCRIMINATORY CHARACTER OF THE MEASURES INTRODUCED BY THE ORDERS OF THE MINISTER FOR FISHERIES OF 16 FEBRUARY 1977, IRELAND HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY AND, MORE ESPECIALLY, UNDER ARTICLE 7 OF THE EEC TREATY AND ARTICLE 2 OF REGULATION ( EEC ) NO 101/76 .
Decision on costs
COSTS
88 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
89 THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DECLARES THAT, BY BRINGING INTO FORCE THE ORDERS OF THE MINISTER FOR FISHERIES OF 16 FEBRUARY 1977 ENTITLED ' SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ORDER, 1977 '
AND ' SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ( NO 2 ) ORDER, 1977 ', IRELAND HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY .
2 . ORDERS IRELAND TO PAY THE COSTS OF THE ACTION, INCLUDING THOSE OF THE APPLICATIONS FOR INTERIM MEASURES .