Commission of the European Communities v Ireland.
Date: 1978-02-16
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 .
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 ' .
46AS INSTITUTIONAL ACTS ADOPTED ON THE BASIS OF THE TREATY , THE REGULATIONS APPLY IN PRINCIPLE TO THE SAME GEOGRAPHICAL AREA AS THE TREATY ITSELF .
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 .
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 .
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