61977CO0061_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 61/77 R
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 OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V IRELAND, REPRESENTED BY LIAM J . LYSAGHT, CHIEF STATE SOLICITOR, ACTING AS AGENT, ASSISTED BY J . M . D . KELLY, ATTORNEY GENERAL, AND R . J . O ' HANLON, S . C ., AND N . P . FENNELLY, BARRISTERS-AT-LAW, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE IRISH EMBASSY, 28 ROUTE D ' ARLON,
DEFENDANT,
Subject of the case
APPLICATION FOR THE SUSPENSION OF MEASURES TAKEN BY THE GOVERNMENT OF IRELAND IN THE SEA FISHERIES SECTOR,
Grounds
1 HAVING REGARD TO THE REPORT FOR THE HEARING,
HAVING REGARD TO THE OPINION OF THE ADVOCATE-GENERAL,
2 BY APPLICATION LODGED AT THE COURT REGISTRY ON 13 MAY 1977, THE COMMISSION INSTITUTED, UNDER ARTICLE 169 OF THE EEC TREATY, PROCEEDINGS AGAINST IRELAND CONCERNING CERTAIN MEASURES TAKEN BY THE GOVERNMENT OF THAT STATE IN THE AREA OF FISHERY CONSERVATION ( HEREINAFTER REFERRED TO AS ' THE IRISH MEASURES ' ).
3 THOSE MEASURES CONSIST IN TWO ORDERS OF THE IRISH MINISTER FOR FISHERIES ISSUED ON 16 FEBRUARY 1977, THE FIRST OF WHICH, ENTITLED THE SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ORDER, 1977, IS INTENDED TO PROHIBIT THE ENTRY OF SEA-FISHING BOATS AND FISHING IN AN AREA OF THE SEA SITUATED WITHIN THE EXCLUSIVE FISHERY LIMITS OF THE IRISH STATE AND DETERMINED BY THE PARALLEL OF 56* 30 '
NORTH LATITUDE, THE MERIDIAN OF 12* WEST LONGITUDE AND THE PARALLEL OF 50* 30 '
NORTH LATITUDE, AND THE SECOND OF WHICH, ENTITLED THE SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ( NO 2 ) ORDER, 1977, EXEMPTS FROM THAT PROHIBITION ANY SEA-FISHING BOAT NOT EXCEEDING 33 METRES IN REGISTERED LENGTH OR HAVING AN ENGINE POWER NOT EXCEEDING 1 100 BRAKE HORSEPOWER .
4 IN ITS MAIN APPLICATION, THE COMMISSION REQUESTS THE COURT TO DECLARE THAT BY INTRODUCING THE DISPUTED UNILATERAL MEASURES IRELAND HAS FAILED TO FULFIL AN OBLIGATION IMPOSED ON IT BY THE TREATY, AND IN PARTICULAR BY COUNCIL REGULATION ( EEC ) NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY ( OJ L 20, P . 19 ).
5 BY APPLICATION OF THE SAME DATE, LODGED PURSUANT TO ARTICLE 186 OF THE TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE, THE COMMISSION REQUESTED THE COURT TO ADOPT INTERIM MEASURES BY PRESCRIBING THAT THE GOVERNMENT OF IRELAND SHOULD SUSPEND THE MEASURES WHICH FORM THE SUBJECT-MATTER OF THE PROCEEDINGS UNTIL THE COURT HAS GIVEN JUDGMENT ON THE SUBSTANCE OF THE CASE .
6 IN THE ALTERNATIVE, THE COMMISSION SUGGESTS THAT THE COURT SHOULD PRESCRIBE THAT THE GOVERNMENT OF IRELAND SHOULD SUSPEND THE APPLICATION OF THOSE PROVISIONS TO THE EXTENT APPROPRIATE TO GIVE EFFECT TO ALTERNATIVE ARRANGEMENTS, CONSISTING IN ALLOWING THE FISHING FLEETS OF MEMBER STATES WHICH HAVE SUBMITTED WITHIN A CERTAIN PERIOD A FISHING PLAN APPROVED BY THE COMMISSION TO FISH IN ACCORDANCE WITH THAT PLAN .
7 UNDER ARTICLE 186 OF THE TREATY, ' THE COURT OF JUSTICE MAY IN ANY CASES BEFORE IT PRESCRIBE ANY NECESSARY INTERIM MEASURES ' .
8 UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE, AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES ' SHALL STATE THE SUBJECT-MATTER OF THE DISPUTE, THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR ' .
9 THE COMMISSION ALLEGES THAT THE IRISH MEASURES ARE DISCRIMINATORY, THAT THEY ARE NOT OBJECTIVELY REASONABLE CONSERVATION MEASURES, AND FINALLY THAT THEY HAMPER THE NEGOTIATIONS CONDUCTED WITH THIRD COUNTRIES AND MAY WELL LEAD TO THE ADOPTION OF UNILATERAL MEASURES BY OTHER MEMBER STATES .
10 THE GOVERNMENT OF IRELAND CLAIMS FOR ITS PART THAT IN VIEW OF THE URGENT NEED FOR ACTION TO CONSERVE THE FISH STOCKS UNDER ITS SOVEREIGNTY OR ITS JURISDICTION, IT WAS OBLIGED TO TAKE UNILATERAL ACTION BECAUSE OF THE INABILITY OF THE COUNCIL, TO WHICH THE COMMISSION HAD SUBMITTED VARIOUS PROPOSALS FOR THE INTRODUCTION OF BOTH INTERIM AND PERMANENT LEGISLATIVE PROVISIONS, TO REACH AGREEMENT ON APPROPRIATE CONSERVATION MEASURES .
11 WITH REGARD TO THE JUSTIFICATION FOR THE MEASURES WHICH IT HAS ADOPTED, THE GOVERNMENT OF IRELAND CLAIMS THAT THE LATTER, WHICH ARE BASED ON OBJECTIVE CRITERIA, DO NOT INVOLVE ANY DISCRIMINATION ACCORDING TO THE NATIONALITY OF THE FISHING BOATS AND THAT THEY ARE MOREOVER CALCULATED, BY THEIR NATURE, TO MAKE AN EFFECTIVE CONTRIBUTION TO THE CONSERVATION OF FISH STOCKS .
12 UNDER ARTICLE 1 OF REGULATION NO 101/76, ' COMMON RULES SHALL BE LAID DOWN FOR FISHING IN MARITIME WATERS AND SPECIFIC MEASURES SHALL BE ADOPTED FOR APPROPRIATE ACTION AND THE COORDINATION 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 RATIONAL USE OF THE BIOLOGICAL RESOURCES OF THE SEA AND OF INLAND WATERS . '
13 UNDER ARTICLE 2 ( 1 ) OF THE SAME REGULATION, ' 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 . '
14 UNDER THE PROVISIONS OF ANNEX VI TO THE RESOLUTIONS ADOPTED BY THE COUNCIL AT ITS MEETING ON 30 OCTOBER 1976 AT THE HAGUE AND FORMALLY APPROVED ON 3 NOVEMBER 1976 ( HEREINAFTER REFERRED TO AS ' THE HAGUE RESOLUTIONS ' ), THE MEMBER STATES ' WILL NOT TAKE ANY UNILATERAL MEASURES IN RESPECT OF THE CONSERVATION OF RESOURCES '
PENDING THE IMPLEMENTATION OF THE COMMUNITY MEASURES IN PREPARATION .
15 ACCORDING TO THE SAME ANNEX, IF SUBSEQUENTLY NO CONSERVATION MEASURES COULD BE ADOPTED IN DUE TIME WITHIN THE INTERNATIONAL FISHERIES COMMISSIONS OR AT COMMUNITY LEVEL, THE MEMBER STATES MIGHT THEN BRING INTO FORCE, AS AN INTERIM MEASURE AND IN A FORM WHICH AVOIDED DISCRIMINATION, APPROPRIATE MEASURES TO ENSURE THE PROTECTION OF RESOURCES SITUATED IN THE FISHING ZONES OFF THEIR COASTS, ON THE UNDERSTANDING HOWEVER THAT BEFORE TAKING SUCH MEASURES, ' THE MEMBER STATE CONCERNED WILL SEEK THE APPROVAL OF THE COMMISSION, WHICH MUST BE CONSULTED AT ALL STAGES OF THE PROCEDURES ' .
16 ALTHOUGH THE IRISH MEASURES ARE ADMITTEDLY BASED ON OBJECTIVE CRITERIA - THE LENGTH AND THE ENGINE POWER OF THE FISHING BOATS - THE COMMISSION CLAIMS THAT IN FACT THIS CRITERION IS DISCRIMINATORY IN THAT ITS CONSEQUENCE IS TO EXCLUDE FROM THE GEOGRAPHICAL ZONE DEFINED BY THE ORDERS A CONSIDERABLE NUMBER OF VESSELS FROM OTHER MEMBER STATES, IN PARTICULAR BRITISH, FRENCH AND NETHERLANDS VESSELS, WHILE IT HAS PRACTICALLY NO EFFECT WITH REGARD TO THE IRISH FISHING FLEET WHICH HAS NO MORE THAN ONE OR TWO BOATS EXCEEDING THE SPECIFICATIONS LAID DOWN IN THE SECOND OF THE ORDERS IN QUESTION .
17 AS REGARDS THE APPROPRIATENESS OF THE IRISH MEASURES WITH REGARD TO THEIR DECLARED AIM, THE PARTIES HOLD CONTRADICTORY VIEWS .
18 ACCORDING TO THE GOVERNMENT OF IRELAND, THE FISHING CAPACITY OF THE BOATS AND THE HARM WHICH THEY MAY THEREFORE CAUSE WITH REGARD TO THE CONSERVATION OF STOCKS IS IN DIRECT PROPORTION TO THEIR SIZE AND ENGINE POWER .
19 THE COMMISSION MAINTAINS, ON THE OTHER HAND, THAT A PROHIBITION OF THE TYPE INTRODUCED BY THE IRISH AUTHORITIES CAN ONLY BE TRULY EFFECTIVE IN CONJUNCTION WITH A BODY OF OTHER MEASURES AIMED AT LIMITING CATCHES AND THAT THEREFORE ITS MOST OBVIOUS EFFECT IS TO EXPEL FROM THE WIDE AREA COVERED BY THE MEASURES IN QUESTION A CONSIDERABLE PROPORTION OF THE FISHING FLEETS OF THE OTHER MEMBER STATES .
20 THE FOREGOING CONSIDERATIONS GIVE RISE TO SERIOUS DOUBT AS TO THE COMPATIBILITY OF THE IRISH MEASURES WITH THE REQUIREMENTS OF COMMUNITY LAW .
21 FOR THE PURPOSE OF JUSTIFYING THE NECESSITY OF OBTAINING THE IMMEDIATE SUSPENSION OF THE IRISH MEASURES, THE COMMISSION CLAIMS IN SUBSTANCE THAT THOSE MEASURES HAVE THE EFFECT OF HAMPERING OR EVEN JEOPARDIZING THE COURSE, ALREADY EXTREMELY DIFFICULT, OF NEGOTIATIONS BEING CONDUCTED BOTH WITHIN THE COMMUNITY AND IN RELATIONS WITH THIRD COUNTRIES WITH A VIEW TO SOLVING THE PROBLEMS CONNECTED WITH THE CONSERVATION OF FISH STOCKS - PROBLEMS WHICH HAVE BECOME PARTICULARLY ACUTE AS A RESULT OF THE RECENT EXTENSION OF EXCLUSIVE FISHING ZONES .
22 THE COMMISSION FURTHER CLAIMS THAT THE PROCEDURE ADOPTED BY IRELAND MAY WELL LEAD, ON THE ONE HAND, TO SHIPPING INCIDENTS IN IRISH WATERS AND, ON THE OTHER, TO THE ADOPTION OF PROTECTIVE MEASURES BY OTHER MEMBER STATES TO SUCH AN EXTENT AS TO SET OFF A CHAIN REACTION WHICH MIGHT IN THE LAST RESORT MAKE IT IMPOSSIBLE TO IMPLEMENT COMMUNITY RULES AND TO REACH AGREEMENT WITH THIRD COUNTRIES .
23 IN ITS DEFENCE, THE GOVERNMENT OF IRELAND EMPHASIZES THE URGENT NEED TO TAKE MEASURES FOR THE CONSERVATION OF ITS FISH STOCKS AND THE JUSTIFICATION FOR UNILATERAL MEASURES IN THE ABSENCE OF DECISIONS AT COMMUNITY LEVEL .
24 THE GOVERNMENT OF IRELAND FURTHER CLAIMS THAT THE IRISH MEASURES HAVE HITHERTO HAD NO PERCEPTIBLE INFLUENCE ON THE COURSE OF THE DELIBERATIONS WHICH HAVE BEEN PROCEEDING WITHIN THE COMMUNITY AND THAT THERE IS NO NEED TO FEAR AN ADVERSE EFFECT ON THE NEGOTIATIONS IN PROGRESS WITH CERTAIN THIRD COUNTRIES SINCE THE PRESENT STAGE ONLY INVOLVES FRAMEWORK AGREEMENTS AND THEREFORE THE QUESTION OF MEASURES RESTRICTING FISHING HAS NOT YET ARISEN IN THIS CONTEXT .
25 IN ADDITION, THE GOVERNMENT OF IRELAND STATES THAT AS REGARDS THE EFFECT OF THE IRISH MEASURES ON THE INTERESTS OF THE OTHER MEMBER STATES, AND IN PARTICULAR THOSE OF THE NETHERLANDS AND FRANCE, THE COMMISSION HAS BEEN UNABLE TO SHOW THE EXISTENCE OF APPRECIABLE HARMFUL EFFECTS .
26 IN THE OPINION OF THE COURT THE IRISH MEASURES, WHICH HAVE BEEN BROUGHT INTO FORCE AT A TIME WHEN THE ELABORATION OF A COMMON FISHING POLICY IS AT A CRITICAL STAGE, MAY WELL SERIOUSLY JEOPARDIZE THE SUCCESSFUL OUTCOME OF THE COMMUNITY DISCUSSIONS WHICH ARE IN PROGRESS AND LEAD, BECAUSE OF THEIR APPARENT DISCRIMINATION, TO THE ADOPTION OF COMPARABLE MEASURES BY OTHER MEMBER STATES WHICH CONSIDER THAT THEIR INTERESTS HAVE BEEN ENDANGERED .
27 MOREOVER, UNTIL THE COMMUNITY HAS HAD THE OPPORTUNITY OF LAYING DOWN, WITHIN A REASONABLE PERIOD, COMMON RULES FOR ALL THE WATERS WHICH NOW COME WITHIN ITS JURISDICTION, IT SEEMS DESIRABLE THAT THE SITUATION WHICH HAS TRADITIONALLY EXISTED IN AREAS OF THE SEA WHICH WERE OUTSIDE THE JURISDICTION OF THE MEMBER STATES BEFORE THE EXTENSION OF THE EXCLUSIVE FISHING ZONES SHOULD NOT BE ALTERED BY DIVERGENT NATIONAL PROVISIONS .
28 FINALLY, IT IS IMPOSSIBLE TO OVERLOOK THE FACT THAT BECAUSE OF THE CLOSE LINK EXISTING BETWEEN THE ESTABLISHMENT OF THE FISHING RULES WITHIN THE COMMUNITY AND RELATIONSHIPS WITH THIRD COUNTRIES, THE MAINTENANCE OF THE MEASURES INTRODUCED BY THE IRISH GOVERNMENT IS CAPABLE OF PREJUDICING THE POSITION OF THE COMMUNITY IN THE NEGOTIATIONS WHICH HAVE BEEN ENTERED INTO AT AN INTERNATIONAL LEVEL .
29 AT THIS STAGE THESE CONSIDERATIONS MILITATE IN FAVOUR OF THE PROVISIONAL SUSPENSION OF THE MEASURES CRITICIZED BY THE COMMISSION .
30 ALTHOUGH SUCH SUSPENSION MAY APPEAR JUSTIFIED IN PRINCIPLE, IT IS, HOWEVER, APPROPRIATE ALSO TO TAKE INTO ACCOUNT THE CONSEQUENCES, FOR THE CONSERVATION OF MARITIME RESOURCES, OF THE SIMPLE ABOLITION OF A MEASURE WHOSE EFFICACY AND APPROPRIATENESS CAN ONLY BE DEFINITIVELY ASSESSED IN THE CONTEXT OF THE PROCEEDINGS ON THE SUBSTANCE OF THE CASE .
31 IT IS CLEAR FROM THE HEARING THAT THE PARTIES TO THE PROCEEDINGS SHARE THE WISH TO ESTABLISH CONSERVATION MEASURES WHICH ARE BOTH EFFECTIVE AND COMPATIBLE WITH THE REQUIREMENTS OF COMMUNITY LAW .
32 IN THIS RESPECT THE COURT TAKES THE VIEW, FIRST, THAT THE FAILURE OF THE DELIBERATIONS OF THE COUNCIL ON THE PROPOSALS SUBMITTED TO IT BY THE COMMISSION AND, IN PARTICULAR, ON THE AMENDED PROPOSAL FOR A REGULATION OF 11 MARCH 1977, TO WHICH IRELAND AND SEVERAL OTHER MEMBER STATES AGREED, MUST NOT, IN SPITE OF THE DIFFICULTIES ENCOUNTERED DURING THE MEETING ON 26 AND 27 MARCH, BE REGARDED AS DEFINITIVE .
33 SECONDLY, THE COURT FEELS THAT ANNEX VI TO THE HAGUE RESOLUTIONS OFFERS THE PARTIES A PROCEDURE WHICH MIGHT ENABLE THEM TO FORMULATE BY MUTUAL AGREEMENT ALTERNATIVE SOLUTIONS WHICH WILL BE FULLY COMPATIBLE WITH THE REQUIREMENTS OF COMMUNITY LAW .
34 IT IS THEREFORE APPROPRIATE, BEFORE GIVING JUDGMENT ON THE INTERIM MEASURE REQUESTED BY THE COMMISSION, TO GIVE THE PARTIES AN OPPORTUNITY TO AGREE WITHIN A SHORT SPACE OF TIME UPON AN ALTERNATIVE SOLUTION WHICH MIGHT BE SUBSTITUTED FOR THE MEASURES FORMING THE SUBJECT-MATTER OF THE PROCEEDINGS .
35 THE DECISION OF THE COURT ON THE INTERIM MEASURE SOUGHT IS ACCORDINGLY DEFERRED .
Operative part
ON THOSE GROUNDS,
THE COURT,
AS AN INTERLOCUTORY MEASURE, HEREBY ORDERS AS FOLLOWS :
1 . A DECISION ON THE APPLICATION SUBMITTED BY THE COMMISSION UNDER ARTICLE 186 OF THE TREATY IS DEFERRED .
2 . THE ORAL PROCEDURE SHALL BE RE-OPENED AND THE HEARING SHALL BE RESUMED AT 10 A.M . ON 22 JUNE 1977 .
3 . THE PARTIES SHALL SUBMIT BY 18 JUNE 1977 AT THE LATEST A WRITTEN REPORT ON THE RESULT OF THEIR NEGOTIATIONS CONDUCTED IN PURSUANCE OF THIS ORDER .