4.

The first aspect which we must examine concerns the various objections of inadmissibility pleaded by the Irish Government in Case 74/82. Ireland objects in the first place to several procedural defects which allegedly infringed its right to a fair hearing. The matters objected to are as follows : the very short periods (15 days and 5 days respectively) within which it was required to reply to the original letter and to comply with the reasoned opinion; the issue of the reasoned opinion without its having been consulted again; the different contents of the initial letter and of the reasoned opinion (import licences were mentioned only in the latter); and the discrepancies which are to be found between the application and the accusations made at the pre-litigation stage (in the former there is no longer any mention of live birds and hatching eggs). To these objections the defendant adds a further two, which are in some way connected with the substance of the case: it claims that the Commission considered Article 11 (1) of Directive 71/118 unlawful, whereas it was not open to it to take such a view in proceedings to which the Council was not a party; moreover, the fact that the Commission did not contest the Irish provisions for more than a decade raises a presumption of their conformity with Community law. In my opinion, the objections are all unfounded and the conduct of the Commission has been fully in accordance with the Treaty. It is true that the coercive nature of the proceedings under Article 169 involves a series of safeguards and guarantees in favour of the Member States. The Court has itself emphasized the importance of the administrative stage and has held that the opportunity to submit observations on a clearly defined charge constitutes for Membes States “an essential guarantee ... and ... an essential procedural requirement in proceedings relating to the finding of a failure on the part of a Member State” (judgment of 17 February 1970, Case 31/69 Commission v Italy, [1970] ECR 25, para. 13). I said the same in the first Opinion which I delivered before this Court (Case 211/81 Commission v Denmark): the entire pre-litigation procedure is designed to ensure compliance with the principle audi alteram partem. Notwithstanding those considerations, the fact remains that the Irish Government was put in a position to defend itself and, ever since the first reply to the Jetter requesting it to submit observations, it has defended itself vigorously. In any event, it is not true that the reasoned opinion must be preceded by further consultations with the Member State and it cannot be contended that the period within which Ireland was required to comply with the Treaty was too short. As to the duration of that period the Treaty is silent. Let us concede, however, that it must be reasonable. It would not have been reasonable if the Commission had applied to the Court immediately. But it did not do so. Instead it granted Ireland an extension and applied to the Court three months after the expiry of the period. A similar conclusion must be reached with regard to the discrepancies which Ireland claims to have established between the reasoned opinion and the initial letter and between the application and the pre-litigation communications. Even with regard to the licensing system, the reasoned opinion did not make allegations which, at least in general terms, were not contained in the initial letter; the Commission confined itself — and in this I see nothing unlawful — to expounding them in greater detail. As regards the application, it is true that it no longer refers to live birds or hatching eggs; but to maintain that the administrative and judicial procedures must be absolutely identical is absurd. If that were so, and if the Commission were not even able to define more closely the charges made against the Member State, the result would be to frustrate the veiy purpose of the pre-litigation procedure namely to allow as fruitful a dialogue as possible to take place between the Member State and the institution. Equally unfounded arc the objections which are connected with the substance of the case. I will observe (a) that the Commission has at no stage suggested that Directive 71/118 is unlawful and (b) that its silence on the Irish provisions during more than 10 years is of no legal consequence. It is well known that in its choice of the moment at which to contest a Member State's failure to fulfil its obligations the Commission has complete discretion. In this case it took action after the notification of the British measures of September 1981 had induced it to investigate the methods by which the other Member States protect their poultry flocks.