4.

In examining the case further, I must therefore consider the form and effects of the Irish measures. Different points of view, some of which, once more, stem from Case 88/77, are relevant in this respect. Thus the question was raised whether the restriction on fishing should not be regarded as a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the EEC Treaty and whether it is therefore not permissible. Doubts were voiced as to whether the Irish orders in question were genuine conservation measures. In addition, it was claimed that the measures infringed the prohibition on discrimination in various respects. Moreover, the criticism was made that their effects on the common organization of the market were not restricted to what was absolutely necessary and that they were capable of jeopardizing the negotiations with third countries which the Commission must conduct pursuant to the Hague Resolutions. (a) The first of these points should present the fewest problems, at any rate if I restrict myself to fundamental observations. In this connexion it was submitted that Council Regulation No. 100/76 of 19 January 1976 on the common organization of the market in fishery products (OJ L 20 of 28. 1. 1976, p. 1) also contains provisions relating to production and that Article 18 (2) thereof prohibits the application of quantitative restrictions. According to the comprehensive definition of such restrictions developed in decided cases and in particular according to the judgment in Case 170/73 (Officier van Justitie v Haaster, judgment of 30 October 1974, [1974] ECR 1123) it is clear that it also covers restrictions on production. It is impossible in the present case to justify such restrictions, in this case a restriction on fishing, on the basis of Article 36 of the Treaty, because the measures went too far. In fact an appropriate quota system would have been sufficient; it would also have been possible to envisage applying the procedure under Annex VI to the Hague Resolutions, which provides for co-operation with the Commission. In my view it is sufficient with regard to this criticism to refer to the abovementioned judgment in the Kramer case. That judgment emphasized that a limitation of fishing activities is imposed with a view to conserving the resources of the sea. It was further stated that even if for a short time this leads to a reduction in the quantities that the States concerned are able to exchange between themselves this must however not be regarded as prohibited within the meaning of the Treaty because these measures were necessary to ensure in the long term a steady, optimum yield from fishing. On the other hand, the reference to a possible quota system seems just as unproductive as the reference to the procedure under Annex VI to the Hague Resolutions, which amounts to the same thing. It is very easy to say this because the present case is solely concerned with purely unilateral measures which are not involved in that connexion. In addition, it is necessary to bear in mind that Ireland immediately sought a different solution by inviting the other Member States to submit fishing plans. I therefore consider — of course this is merely a provisional judgment — that it is impossible to call in question, on the ground that they are measures having an effect equivalent to quantitative restrictions on imports which are prohibited by the Treaty, the fact that the Irish measures are in principle permissible. This does not however say whether the measures went beyond what was necessary and could for that reason be classified in the abovementioned way. It will be necessary to examine this aspect later in connexion with other considerations. (b) It is further necessary to examine whether measures which only lead to a ban on vessels of a certain size and engine-power are genuine conservation measures. The Commission in particular contests this. On the other hand the Irish government relies upon the fact that even under earlier Irish orders (the Sea Fisheries Act 1952, Sea Fisheries (Amendment) Act 1959 and the Licensing of Sea Fishing Vessels Regulations 1960) vessels of a certain size required a licence and were banned from certain areas. In addition, it claims that even in the case of the measures which it was necessary to appraise in the Kramer case, measures which were recommended by an international commission, the size of the vessel was of importance and that no objection was raised thereto. Finally, it refers to the fact that in the Commission's proposals for conservation measures of December 1976 and January 1977 such considerations were also of importance and it points out that criteria of this nature may also be found in Community Regulations No 194/77 (OJ L 46 of 29. 1. 1977, p. 25) and No 746/7 (OJ L 90 of 8. 4. 1977, p. 8) on the fishing rights of third countries. Other parties to the proceedings, in particular the Commission counter this argument by stating that they are not appropriate conservation measures because it is to be expected that the banned vessels would seek other waters and give rise there to the danger of over-fishing. They refer to the fact that examples of conservation measures are set out in Article 4 of Regulation No 101/76 and that that article speaks of restrictions relating to the catching of certain species, to areas, to fishing seasons, to methods of fishing and to fishing gear. In fact, genuine conservation measures, and reference may be made in this connexion to what is customary in international conventions and organizations, are adapted to the particular biological features of specific areas and it is impossible to speak of such in relation to the Irish Sea; in addition they provide for different treatment according to species of fish and size of fish. Their aim is in particular to lay down a total maximum quantity which may be fished and its distribution among the various interested parties. In this connexion the number of vessels permitted access and the length of catches is laid down. Often the method of fishing is taken as the basis and provisions relating to equipment, for example the size of nets and so forth, are adopted, in particular for the conservation of spawning grounds and young fish stocks. The reference to earlier Irish measures is therefore untenable because those measures only applied to coastal waters and in addition contained a strong element of social policy. The same applies to the proposals of the Commission which were put forward and which referred only to the 12-mile zone. In this connexion, it is necessary moreover to take into consideration, that is, regardless of criteria relating to social and regional policy, the fact that their aim was the protection of particularly vulnerable areas (for example spawning grounds) and that for that reason they also laid down provisions relating to prohibited equipment. In the same way it is impossible to refer to regulations relating to the fishing rights of third countries. It is in fan important in this respect that it is not pure conservation measures which are involved and that, with the exception of the rules applicable to the Spanish fleet, which were aimed at the vessels which had been used until then, they had in mind not only other sizes of vessels but also a quota system and, in connexion therewith, a restriction on the number of larger vessels. Finally, it is also necessary to consider that the Irish measures in question did not provide for any restriction on the number of small vessels which were permitted. The large vessels which were excluded could therefore have immediately been replaced by small vessels and in addition it is necessary to bear in mind in this connexion that smaller vessels, according to the method of fishing and the use of the fish caught, could in certain circumstances constitute a greater danger for the fish stocks than large vessels. It is possible to state first of all with regard to this difference of opinion that the argument put forward against the Irish measures to the effect that they had unfavourable effects on other waters and increased the danger of over-fishing there is very unconvincing. Naturally, a comprehensive system covering all waters would be the most appropriate. However, the Hague Resolutions made provision for unilateral national measures precisely in case such a comprehensive system did not materialize in due course. Since any national measure involves a restrictive effect it is impossible to contest its permissibility by indicating that it represents a danger to other areas of the sea to which the banned vessels would move. In addition, I grant — this however tells against the Irish measures — that in their ideal form conservation measures must certainly take the form described by the Commission. In the same way, it seems to me that the statements made by the Commission with regard to the references of the Irish Government to earlier Irish measures, to the measures which it was necessary to appraise in the Kramer case and to the proposals submitted by the Commission in the spring of last year are convincing. In fact it certainly makes a fundamental difference whether measures refer only to coastal waters with particularly vulnerable fish stocks or to a very large area of the sea, quite apart from the fact that in the case of the proposals put forward by the Commission, fundamental reasons based on regional and social policy were involved which unilateral national measures should not automatically have. In addition the Irish measures provided for no restrictions on small vessels, which must in the long term have deprived them of all conservation effects. In this connexion it is moreover of interest that the Netherlands Government declared that it was possible to replace in a relatively short time the larger vessels which had been banned by smaller ones which, on the basis of the composition of the French fleet, should also have been possible with regard to the latter. In the same way, it is of interest that, according to the statements made by the defendant in the procedure which led to the reference to this court for a preliminary ruling in Case 88/77, smaller vessels could, if they applied certain fishing techniques and if the catches were used in a certain way (processing into fish meal), endanger the fish stocks to a greater extent than large vessels which fish only for human consumption and process the catches right on board. On the other hand it must in turn be acknowledged that in appraising the case the fact that national measures had to be adopted quickly and that the Irish control facilities are limited is also of importance. It addition it cannot be denied that the Irish measures certainly involved in the short term a restriction on catches and thus contributed to the conservation of the fish stocks. The replacement of larger vessels by small ones did in fact require a certain period of time quite apart from the fact that smaller vessels from other Member States were restricted in their powers of action in view of the distance and the weather conditions in the relevant area of the sea. The Irish Government had however according to its statements merely intended transitional measures which were to be replaced by fishing plans or even Community measures. Thus, after examining all the criteria which are of importance in this connexion, I can do no more than express doubts as to whether the contested measures should really be considered as genuine conservation measures. A reliable judgment would in my opinion be possible only after consultation of an expert. Of course I do not consider that it is necessary to go into the examination more deeply in this way. I rather prefer to turn to another aspect of the examination in respect of which it seems to be easier to reach a clear judgment. (c) I come therefore to the criticism, which should indeed form the focal point of the proceedings, that the Irish measures infringed the prohibition on discrimination. This criticism is based on Annex VI to the Hague Resolutions which states that the Member States shall adopt appropriate measures in a form which avoids discimination. In addition the abovementioned Article 2 of Regulation No 101/76 provides that differences in treatment of other Member States are prohibited and that ‘equal conditions of access to and use of the fishing grounds’ must be granted to the fishing vessels of the Member States in the waters coming under the sovereignty of the Member States. In this connexion the Commission indicated that the criterion of the size of the vessel and engine-power chosen in the Irish measures results in very different effects on the fishing fleets of the Member States, in particular if one takes as the basis the ships which formerly traditionally fished in the waters in question and were banned as a result of the Irish measures. Thus differences arise from a comparison of the situation of other Member States concerned with the situation of the Irish fleet and, on the other hand, from a comparison between the remaining Member States. In addition, the defendant in the proceedings which led to the reference to this Court for a preliminary ruling in Case 88/77 claimed that it is possible to speak of discrimination also in relation to the large . vessels which were banned and the smaller vessels which were permitted access. In this connexion the Irish Government defends itself, if I ignore the argument which has already been examined according to which Regulation No 101/76 only applies to the 200-mile zone, by indicating above all that in fact no differentiation was made on the basis of nationality but that criteria were applied which were, rather, objective and a in the same way to all those ned. The different effects whic y arose are irrelevant for the s of the prohibition on disc So far as the effects on the nds fleet are concerned, it is necessary to take into cot on the fact that they have not be for long in the Irish waters. In se it is a decisive factor, and th to the fact that virtually no e be recorded with regard to fleet, that in this respect a tuation existed, since because tructure of the Irish fleet only waters come into consideration egard to that fleet and that those are therefore vital. Therefore are reasonable grounds in favour of the preservation of the Irish fishing industry according to the relevant case-law which states that this is merely the establishment of the necessary equilibrium. In this connexion it is in addition possible to refer to the statements made by the Community institutions which have repeatedly accepted preferential treatment for the Irish fishing industry. Thus the Council confirmed in the Hague Resolutions the need for the continued and progressive development of the Irish fishing industry in view of the particular problems of Ireland and the Commission likewise admitted in its proposals of March 1977 that the volume of Irish catches within the context of Community conservation measures could increase by approximately 20 % by comparison with 1976. I should like to point out at the beginning with regard to this very important issue in the proceedings that the above-mentioned Article 2 of Regulation No 101/76, rather than Annex VI to the Hague Resolutions, is of central importance as a legal criterion. In order to avoid misunderstandings I should like however to add that I am convinced that Annex VI to the Hague Resolutions was in no way intended to qualify the criterion but was merely meant to restate in a shortened form the concept already contained in Article 2 of Regulation No 101/76. In the same way it is necessary in my view to stress at the outset the factors already developed in the case-law of this Court with regard to the principle of the prohibition on discrimination or of equal treatment. We must above all adhere to these principles; on the other hand, the reference to the case-law of the European Court of Human Rights made by the Irish Government in the oral procedure is only of limited interest chiefly because of the different wording used in the Convention for the Protection of Human Rights and Fundamental Freedoms. Thus it was stated in the judgment in Case 13/63 (Government of the Italian Republic v Commission of the EEC, judgment of17 July 1963 [1963] ECR 165) that similar situations should, in accordance with the prohibition on discrimination, not be treated differently and that the decisive factor is whether it is possible to speak of discrimination in substance. In the judgment in Case 152/73 (Sotgiu v Deutsche Bundespost, judgment of12 February 1974 [1974] ECR 153) it was emphasized that not only overt and express discrimination is involved but also covert forms of discrimination and that the ascertainable effects and not technical legal trappings are decisive. In addition, the judgment in Case 153/73 (Holtz & Willemsen GmbH v Council and Commission of the European Communities, judgment of2 July 1974, [1974] ECR 675) speaks of the need for criteria of an objective nature which ensure a proportionate distribution of advantages and disadvantages. If the Irish measures are considered against this background it is first of all impossible to avoid the finding that the criteria chosen involved virtually no effects for the Irish fleet which until that time was active in the area in question, since only two vessels are prohibited from fishing; they have however only been in service since 1975 and one of them, which is not in dispute, has normally never fished in the area in question. On the other hand, the situation with regard to France is that of 407 vessels which normally go fishing in the Irish waters 101, in other words approximately 25 %, are banned. With regard to the Netherlands it is established that a considerable proportion of the Netherlands fleet had fished for years in the Irish waters and can therefore definitely claim ‘longstanding rights’ which must be taken into consideration in the present case. Of the 42 Netherlands vessels which, according to the information supplied by the Netherlands Government, were equipped for fishing in the Irish waters, 35 were banned from fishing on account of the criteria laid down in the Irish measures although the Netherlands fleet, which traditionally operated in the area in question, had in any case diminished by a third since 1975. It is therefore certainly impossible to deny that the Irish measures have considerably different effect on the various Member States. On the other hand it is impossible to argue that the negative effects on the French and Netherlands fleet could have been reduced by employing smaller vessels. It is in fact not known to what extent at all it is possible to make use in other waters of approximately 3700 smaller vessels belonging to the French fleet and approximately 460 smaller vessels belonging to the Netherlands fleet, disregarding the fleet in the IJsselmeer. In addition, it is at any rate certain — only thus was there any reason at all for the Irish measure — that immediate re-organization of the fishing fleet and thus instant adjustment was impossible. In addition, the fact that the powers of action of smaller vessels in far distant waters in which there are often stormy seas are so hampered that it is impossible to expect catches which could be achieved by larger vessels also tells against such an adjustment. Moreover it is in my opinion impossible to refer, for the purposes of justifying the above-mentioned different effects, to the special situation of the Irish fishing industry with regard to which it is established on the one hand that Irish vessels, in contrast to large Netherlands and French vessels, could not move to other fishing areas and in respect of which it is, secondly, acknowledged that it requires development. In this connexion various factors come into consideration in order to show that the reasons put forward by the Irish Government may not be regarded as factual considerations within the meaning of the requirement of equal treatment. We are not clear whether in fan it is possible for the banned French and Netherlands vessels to compensate for the losses in other waters and whether this involves considerably higher expenditure. Thus doubts may rightly be raised as to whether it is at ail justifiable in this connexion to take into consideration all the circumstances relating to the branch of industry concerned. On the basis of Article 2 of Regulation No 101/76 the focal point of the examination is equal access to the Irish waters, which must be ensured, and from this point of view the comparison with the situation which existed before the introduction of the Irish measures certainly suggests itself as the decisive one. Moreover, in so far as Ireland refers to the fact that on various occasions Community institutions spoke of the necessary development of the Irish fishing industry it is not only essential that this does not necessarily cover higher catch quotas — as the Commission stressed, Sute aid could for example come into consideration — but it is in particular important that these were merely declarations of intent with regard to the internal regime which was yet to be established which were intended to explain the elements of acommon policy which may also be characterized by other factors. However, what is possible within the context of a Community measure from the viewpoint of social and regional policy or the grant of aid may certainly not be introduced by the Member States alone within the context of unilateral national measures. It is accordingly impossible to doubt that the Irish measures led to discrimination against the French and Netherlands fishing fleets in relation to the Irish fishing fleet and in addition to this it is possible also to detect a difference in treatment if the examination is limited to the other Member States, with the exception of Ireland. This can be said with regard to the comparison between France and the Netherlands if one bears in mind the figures which were set out above in relation to the ban on vessels which traditionally fished in the Irish waters and if one considers that France, because of the distance and the number of small vessels which its fleet contains, should be in a better position to change over to the small vessels which are permitted access. In addition this may be stated with regard to the comparison of both these States with Great Britain since according to the statements of the Commission in the application the British fleet, which has up to now fished in the waters in question, has not been at all affected by the Irish measures. Finally, it is also impossible to counter the criticism which may be substantiated in this way that the prohibition on discrimination has been infringed — in my opinion the question whether it is necessary to accept that there has been discrimination against larger vessels in relation to smaller vessels may be disregarded — by stating that any effective conservation measure involves different effects and that it was impossible to envisage other unilateral measures in view of the control facilities which Ireland had at its disposal. I am not convinced that all conservation measures — the same may not apply to a complete fishing ban — necessarily have different effects. In any case, with regard to the Irish measures, which cover a very large area of the sea, there are considerable doubts as to the accuracy of this argument which have not been removed and in my opinion it has not been shown that other measures which were not discriminatory or were less discriminatory were totally inconceivable. Thus the Commission referred for example to the possibility of restricting fishing bans to certain periods of time or areas. Moreover, it would have been possible to consider an appreciable restriction in Irish catches or a sundstill order relating to the catches made in 1976, with which Ireland had declared itself to be in agreement in March 1977, quite apart from the fact that it has not been clearly shown that the immediate replacement of the measures which had been adopted by fishing plans failed because of the attitude of other Member States in the negotiations with Ireland. For this reason it is necessary to acknowledge at the end of this section that the Commission correctly accuses the Irish Government of the infringement of a fundamentel principle contained in Regulation No 101/76 and that for this very reason the finding that there has been an infringement of Community law is justified. (d) After this it is in fact superfluous to examine the remaining problems raised in the proceedings. I would however like to deal with them at least cursorily, in other words to touch briefly on the question of the principle that national conservation measures must be restricted to what is absolutely necessary and in particular on the requirement that it is necessary to ensure that the effects on the common policy and the functioning of a common organization of the market must be kept to the minimum. In addition it is necessary to deal briefly with the allegation that the negotiations which the Commission must conduct with third countries were jeopardized. (aa) With regard to the first point the Commission relies upon the case-law of the Court of Justice in which the principle of proportionality has repeatedly been stressed. According to that case-law, for example the judgment in Case 155/73 (Sacchi, judgment of 30 April 1974, [1974] ECR 409), the principle that drastic measures are only permissible to the extent to which they are absolutely necessary applies and it is necessary to take into consideration according to the judgment in Case 104/75 (De Peijper, judgment of 20 May 1978, [1976] ECR 613) the fact that protective measures must restrict themselves to what is necessary and must only contain those rules which must be considered as the least restrictive. In particular the abovementioned judgment in the Kramer case is of interest in the present case which stressed that national measures must not jeopardize the objectives or the functioning of the Community system and in particular that the implementation of fishing restrictions must be arranged in such a way as to keep the effects on the functioning of the common organization of the market to a minimum. In fact there are many indications in favour of the assumption that that principle was not taken into sufficient consideration when the Irish measures were adopted. In this connexion I would like to leave open the question whether it may correctly be said, and it is impossible to repudiate it completely, that the Irish measures constituted an obstacle to the common policy which must now be elaborated and that they are capable of prejudicing the result of the negotiations on an internal régime and thus of making agreement more difficult. In my opinion it is sufficient to sute the following considerations : — It seems to have been shown that the measures which were adopted went far beyond what was necessary both from the geographical and the biological point of view. They relate to a very large area, in fact to 25 % of the Irish waters, and thus to almost all the zone in this area which is abundant in fish. Moreover, they apply without distinction to all species of fish. The Irish Government was not however able to show, by putting forward biological reasons, that such an extensive danger of over-fishing exists, and in particular it did not refute the statement of the Commission, which has been substantiated, that the Irish waters are not a uniform ecological area and that not all the species of fish which are found there equally merit conservation. It is possible at least to refer correctly in this connexion to the above- mentioned sharp decrease in the catches made by third countries which resulted in a considerable improvement. For this reason the Commission with good reason raised the question whether less extensive measures would have sufficed, for example the above-mentioned sundstill order based upon the year 1976. — In addition reference was correctly made, in so far as the form which the Irish measures took is concerned, to the objectives relating to structural policy contained in Regulation No 101/76 — rational use of the biological resources of the sea, increase in productivity, reorganization of fleets for the purpose of technical development, and so forth. They are doubtless of particular importance to a sector which is undergoing a recession and has to suffer considerable economic difficulties. However, measures which ban large modern vessels from fishing and which result in the conversion of the fleets to smaller and less modern vessels counteract these objectives. It may accordingly be said at least that considerable additional doubts as to the compatibility of the Irish measures with the principles laid down in Community law have thus become apparent. However, as the facts stand it is impossible to go further into these aspects. This is however also not imperative because the accusation of discrimination is sufficient to aid the success of the application lodged by the Commission for a declaration that Ireland has failed to fulfil its obligations. (bb) The following may be stated with regard to the negative effects of the Irish measures on the negotiations with third countries on fishing questions. The Commission claims, and in this respect it relies upon the judgment in the Kramer case and upon Opinion 1/76, that the Member States are under a duty to act in common with regard to external affairs and that the Community has jurisdiction with regard to the conclusion of agreements in the area of the organization of the market in fishery products. Accordingly, the Commission was instructed at The Hague to conduct negotiations and such negotiations were begun with the objective of concluding reciprocal agreements. It must therefore be regarded as prohibited for individual Member States to withdraw unilaterally the mandate given to the Commission and for that reason it is also impossible to tolerate the jeopardizing of the negotiations through actions taken by individual Member States. This is however to be expected, in other words that the Community's position will be upset by measures such as the Irish measures, and the Commission gives several examples of this. The Irish Government replied to this that it is itself taking part in the negotiations and that it is unaware of any difficulties which are attributable to its measures. This fact must also be taken into account in negotiations with third countries as long as national conservation measures are possible. In addition, it must be remembered that at present only the elaboration of outline agreements is involved and not the fixing of quotas, fishing zones and so forth, and that these details are in any case dependent upon the establishment of the internal regime the elaboration of which has not yet been agreed upon. It is necessary to observe with regard to this difference of opinion on the one hand that the examples which the Commission put forward with regard to the detrimental effect on the negotiations with third countries do not seem very impressive. I recall that in this connexion it was said that some third countries wanted to conclude agreements only with the individual Member States, and that certain third countries doubted the capacity of the Community to conclude agreements in this field and to ensure implementation of them; I also recall that reference was made to the threat of reprisals for the purpose of restoring equilibrium in existing agreements and that for example Norway declared that the Irish measures, which were applied to several Norwegian vessels, could result in demands for fresh negotiations on agreements which had been concluded. To this extent it is moreover of interest that Ireland declared, without being contradicted, that the ban on Norwegian vessels was based on an error and that this has in the meantime been resolved. In addition it is necessary to bear in mind that it was in fact possible to reach agreement on fishing restrictions with certain third countries. On the other hand, however, it should be remembered that the form of unilateral national measures, which had in fact to be taken into consideration in negotiations with third countries, must be such they may be acknowledged to be conservation measures and that they are restricted to what is absolutely necessary. If this requirement is not complied with the danger actually arises that the Community position in negotiations with third countries will be unduly jeopardized. As we have seen, there are however strong doubts as to whether the Irish measures complied therewith. For this reason at least it is possible that objections must also be made to the measures from the point of view of ‘not jeopardizing negotiations with third countries’. At this point I shall merely make this suggestion. Once again, it seems impossible to go into the matter further on the basis of the information which it is possible for us to obtain; it is also unnecessary since, as I have shown, the accusation of discrimination is sufficient to enable the Commission's application to be granted.