1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 9 SEPTEMBER 1986 IRELAND BROUGHT AN ACTION BEFORE THE COURT UNDER THE FIRST PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION DECISION 86/445 OF 1 JULY 1986 ON THE CLEARANCE OF THE ACCOUNTS PRESENTED BY IRELAND IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION ( HEREINAFTER REFERRED TO AS "THE FUND "), EXPENDITURE FOR 1982 ( OFFICIAL JOURNAL 1982, L 256, P . 34 ), IS VOID IN SO FAR AS THE COMMISSION HAS FAILED TO CHARGE TO THE FUND THE SUM OF IRL 143 041.05 IN RELATION TO INTERVENTION AND EXPORT REFUNDS IN THE FISHERIES SECTOR .
2 IRELAND' S MAIN SUBMISSION IN SUPPORT OF ITS ACTION IS LACK OF POWERS ON THE PART OF THE COMMISSION, WHICH COULD NOT VALIDLY ADOPT IN 1982 MEASURES REGARDING CONSERVATION OF THE RESOURCES OF THE SEA SINCE, NOTWITHSTANDING COUNCIL REGULATION NO 172/83 OF 25 JANUARY 1983 FIXING FOR CERTAIN FISH STOCKS AND GROUPS OF FISH STOCKS OCCURRING IN THE COMMUNITY' S FISHING ZONE, TOTAL ALLOWABLE CATCHES ( TACS ) FOR 1982, THE SHARES OF THESE CATCHES AVAILABLE IN THE COMMUNITY, THE ALLOCATION OF THAT SHARE BETWEEN THE MEMBER STATES AND THE CONDITIONS UNDER WHICH THE TOTAL ALLOWABLE CATCHES MAY BE FISHED ( OFFICIAL JOURNAL 1983, L 24, P . 30 ), THERE WAS NO LEGALLY BINDING INSTRUMENT IN 1982 FIXING FISHING QUOTAS . ALTERNATIVELY, IRELAND ALLEGES BREACH OF THE PRINCIPLES OF LEGAL CERTAINTY AND THE PROTECTION OF LEGITIMATE EXPECTATIONS .
3 THE COMMISSION CONTENDS THAT THE FISHING QUOTAS WERE VALIDLY FIXED FOR 1982 AND DENIES ANY BREACH OF THE PRINCIPLES OF LEGAL CERTAINTY AND LEGITIMATE EXPECTATIONS .
4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
5 IN ORDER TO ASSESS THE MERITS OF THE MAIN SUBMISSION IT IS NECESSARY TO CONSIDER WHETHER IN 1982 THERE WERE COMMUNITY RULES IN RELATION TO THE CONSERVATION OF THE RESOURCES OF THE SEA RESTRICTING CATCHES .
6 THE ESSENTIAL POINT ABOUT THE SITUATION IN 1982 IS THAT THE COUNCIL, WHICH PURSUANT TO ARTICLE 102 OF THE 1972 ACT OF ACCESSION HAS SINCE 1 JANUARY 1979 BEEN SOLELY RESPONSIBLE FOR THE ADOPTION OF CONSERVATION MEASURES UNDER THE COMMON FISHERIES POLICY, ACTING ON A PROPOSAL FROM THE COMMISSION, ADOPTED NO SUCH MEASURES IN 1982 . IT WAS NOT UNTIL REGULATION NO 172/83 THAT THE COUNCIL RETROACTIVELY FIXED TACS AND NATIONAL QUOTAS FOR 1982 .
7 FROM 1 JANUARY 1982 UNTIL 30 JUNE 1982 FISHING ACTIVITIES IN COMMUNITY WATERS WERE GOVERNED BY INTERIM COUNCIL DECISIONS, NAMELY DECISIONS 81/1052 OF 29 DECEMBER 1981 ( OFFICIAL JOURNAL 1981, L 379, P . 52 ), 82/207 OF 31 MARCH 1982 ( OFFICIAL JOURNAL 1982, L 99, P . 34 ), 82/271 OF 29 APRIL 1982 ( OFFICIAL JOURNAL 1982, L 120, P . 29 ) AND 82/346 OF 31 MAY 1982 ( OFFICIAL JOURNAL 1982, L 152, P . 12 ) REQUIRING MEMBER STATES TO TAKE ACCOUNT OF THE TACS PROPOSED BY THE COMMISSION ON 24 JULY 1981 WHEN CONDUCTING THEIR FISHING ACTIVITIES .
8 ON 18 AND 21 JUNE 1982 THE COMMISSION SUBMITTED TO THE COUNCIL PROPOSALS FOR TACS AND QUOTAS FOR 1982 ( OFFICIAL JOURNAL 1982, C 228, P . 14 AND C 233, P . 4 ) ON WHICH THE COUNCIL WAS UNABLE TO AGREE . NEVERTHELESS, ON 29 JUNE 1982 THE COUNCIL ADOPTED DECISION 82/440 OF 29 JUNE 1982 ( OFFICIAL JOURNAL 1982, L 190, P . 9 ) IN WHICH IT DECIDED THAT FROM 1 TO 23 JULY 1982 MEMBER STATES SHOULD TAKE ACCOUNT OF THE TACS PROPOSED BY THE COMMISSION ON 24 JULY 1981 .
9 AT THE COUNCIL MEETING OF 21 JULY 1982 THE COMMISSION SUBMITTED A DECLARATION TO THE COUNCIL ( OFFICIAL JOURNAL 1982, C 199, P . 21 ) IN WHICH IT NOTED THE COUNCIL' S FAILURE TO REACH AN AGREEMENT ON THE FIXING OF TACS AND QUOTAS . IN ORDER TO ENABLE THE COMMUNITY TO DISCHARGE ITS RESPONSIBILITIES WITH REGARD TO CONSERVATION FROM THE DATE OF THE DECLARATION UNTIL 30 SEPTEMBER 1982 THE COMMISSION RECALLED THAT THE MEMBER STATES NOT ONLY HAD THE RIGHT TO ADOPT THE NECESSARY MEASURES, SUBJECT TO APPROVAL BY THE COMMISSION, BUT ALSO HAD THE DUTY TO TAKE THESE MEASURES IN THE COLLECTIVE INTEREST, THIS BEING A DUTY WHICH THE COMMISSION COULD ASK THEM TO ACCEPT . THE COMMISSION ALSO DECLARED THAT WITH A VIEW TO ENSURING THAT THE ACTIVITIES OF THE ENTIRE FISHING FLEET OF THE MEMBER STATES WERE AS ORDERLY AND STABLE AS POSSIBLE, THE COMMISSION WOULD, IN CARRYING OUT ITS DUTIES, AND PARTICULARLY WHEN APPROVING NATIONAL CONSERVATION MEASURES, ACT ON THE BASIS OF THE PROPOSALS WHICH IT SUBMITTED TO THE COUNCIL .
10 SUBSEQUENTLY THE COUNCIL ADOPTED FOR 1982 OTHER PROVISIONAL MEASURES, NAMELY DECISIONS 82/498 OF 21 JULY 1982 ( OFFICIAL JOURNAL 1982, L 216, P . 40 ), 82/650 OF 20 SEPTEMBER 1982 ( OFFICIAL JOURNAL 1982, L 274, P . 33 ), 82/739 OF 26 OCTOBER 1982 ( OFFICIAL JOURNAL 1982, L 312, P . 17 ) AND 82/802 OF 29 NOVEMBER 1982 ( OFFICIAL JOURNAL 1982, L 339, P . 57 ). IN THOSE DECISIONS, THE COUNCIL, BEARING IN MIND THE COMMUNITY' S EXCLUSIVE COMPETENCE IN THE MATTER AND THE OBLIGATIONS ON THE MEMBER STATES AS DEFINED BY THE COURT OF JUSTICE, DECIDED THAT FROM 24 JULY 1982 TO 31 DECEMBER 1982 "THE MEMBER STATES SHALL CONDUCT THEIR FISHING ACTIVITIES IN ACCORDANCE WITH THE USUAL SEASONAL CYCLES, TAKING INTO ACCOUNT THE TACS PROPOSED BY THE COMMISSION ON 21 JUNE 1982 AS ( SUBSEQUENTLY ) AMENDED ".
11 AT THE COUNCIL MEETING ON 21 DECEMBER 1982 THE COMMISSION SUBMITTED A FRESH DECLARATION IN WHICH IT REQUESTED IN PARTICULAR THAT THE MEMBER STATES SHOULD SUBMIT TO IT AS SOON AS POSSIBLE THE NATIONAL CONSERVATION MEASURES WHICH THEY CONTEMPLATED ADOPTING . THE COMMISSION ALSO DECLARED THAT IT WAS DETERMINED TO USE ALL THE MEANS IN ITS POWER TO ENSURE THAT THE MEMBER STATES SHOULD HONOUR THEIR OBLIGATIONS .
12 ON 25 JANUARY 1983 THE COUNCIL ADOPTED, AS A SUPPLEMENT TO REGULATION NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY ( OFFICIAL JOURNAL 1976, L 20, P . 19 ), REGULATION NO 170/83 ESTABLISHING A COMMUNITY SYSTEM FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES ( OFFICIAL JOURNAL 1983, L 24, P . 1 ). IT WAS ON THE BASIS OF ARTICLE 11 THEREOF THAT THE COUNCIL ADOPTED ON THE SAME DAY THE AFORESAID REGULATION NO 172/83 .
13 FOR THE PURPOSES OF CONSIDERING THE SITUATION IN 1982 IT IS NECESSARY TO RECALL THAT THE COURT HELD IN ITS JUDGMENT OF 5 MAY 1981 IN CASE 804/79 COMMISSION V UNITED KINGDOM (( 1981 )) ECR 1045 THAT, WHERE THE COUNCIL HAD FAILED TO ACT, ARTICLE 5 OF THE TREATY REQUIRED MEMBER STATES TO FACILITATE THE COMMUNITY' S ACCOMPLISHMENT OF ITS TASK AND TO REFRAIN FROM ANY MEASURES LIKELY TO JEOPARDIZE THE ACHIEVEMENT OF THE AIMS OF THE TREATY; ARTICLE 5 IMPOSED ON MEMBER STATES SPECIAL DUTIES OF ACTION AND ABSTENTION WHERE THE COMMISSION, IN ORDER TO MEET URGENT CONSERVATION NEEDS, HAD SUBMITTED TO THE COUNCIL PROPOSALS WHICH, ALTHOUGH THEY WERE NOT ADOPTED BY THE COUNCIL, REPRESENTED A BASIS FOR CONCERTED COMMUNITY ACTION . THE COURT ALSO DECLARED THAT THIS WAS A FIELD RESERVED TO THE POWERS OF THE COMMUNITY, WITHIN WHICH MEMBER STATES MIGHT HENCEFORTH ACT ONLY AS TRUSTEES OF THE COMMON INTEREST; MEMBER STATES COULD NOT, THEREFORE, IN THE ABSENCE OF APPROPRIATE ACTION ON THE PART OF THE COUNCIL, BRING INTO FORCE ANY INTERIM CONSERVATION MEASURES WHICH MIGHT BE REQUIRED BY THE SITUATION EXCEPT AS PART OF A PROCESS OF COLLABORATION WITH THE COMMISSION . MEMBER STATES HAD A DUTY NOT TO LAY DOWN NATIONAL CONSERVATION MEASURES INCOMPATIBLE WITH THE OBJECTIONS, RESERVATIONS OR CONDITIONS WHICH MIGHT BE FORMULATED BY THE COMMISSION .
14 THE COURT THUS ACCEPTED THAT WHERE THE COUNCIL HAD FAILED TO ADOPT THE CONSERVATION MEASURES NECESSARY TO PROTECT FISH STOCKS SUCH MEASURES, DESIGNED TO ANSWER URGENT NEEDS, MIGHT BE AGREED UPON BY MEANS OF A PROCESS OF COOPERATION BETWEEN THE MEMBER STATES AND THE COMMISSION IN ORDER TO ENABLE THE COMMUNITY TO MEET ITS RESPONSIBILITIES .
15 IT IS COMMON GROUND THAT NO SUCH PROCESS OF COOPERATION WAS INITIATED IN 1982 BETWEEN IRELAND AND THE COMMISSION SINCE IRELAND DID NOT RESPOND TO THE COMMISSION' S INVITATION TO ADOPT THE MEASURES NEEDED TO ENSURE COMPLIANCE WITH ITS PROPOSALS . IN THOSE CIRCUMSTANCES, AND WITHOUT ITS BEING NECESSARY TO RULE ON THE LEGAL CONSEQUENCES OF THAT LACK OF COOPERATION ON THE PART OF A MEMBER STATE, IT MUST BE FOUND THAT THE PROPOSALS UNILATERALLY MADE BY THE COMMISSION IN RELATION TO THE FISH QUOTAS TO BE ALLOCATED TO IRELAND CANNOT, AS THE COURT HAS HELD IN ITS JUDGMENT OF TODAY' S DATE IN CASE 325/85 IRELAND V COMMISSION (( 1987 )) ECR 0000, BE REGARDED AS COMMUNITY RULES WITHIN THE MEANING OF ARTICLES 2 AND 3 OF REGULATION NO 729/70, DISREGARD OF WHICH COULD JUSTIFY THE COMMISSION' S REFUSAL TO CHARGE TO THE FUND THE INTERVENTION PAYMENTS AND REFUNDS AT ISSUE .
16 IT IS STILL NECESSARY TO CONSIDER WHETHER THE CONTESTED DECISION OF THE COMMISSION MAY BE JUSTIFIED BY REGULATION NO 172/83 WHICH ENTERED INTO FORCE ON 27 JANUARY 1983 AND DETERMINES RETROACTIVELY THE FISHING QUOTAS FOR 1982 .
17 IN THAT RESPECT IT IS NECESSARY TO POINT OUT THAT, AS THE COURT HAS REPEATEDLY HELD, COMMUNITY LEGISLATION MUST BE CERTAIN AND ITS APPLICATION FORESEEABLE BY THOSE SUBJECT TO IT . THAT REQUIREMENT OF LEGAL CERTAINTY MUST BE OBSERVED ALL THE MORE STRICTLY IN THE CASE OF RULES LIABLE TO ENTAIL FINANCIAL CONSEQUENCES, IN ORDER THAT THOSE CONCERNED MAY KNOW PRECISELY THE EXTENT OF THE OBLIGATIONS WHICH THEY IMPOSE ON THEM .
18 IN THE PRESENT CASE, WHEN THE REFUNDS AT ISSUE WERE GRANTED IRELAND WAS NOT IN A POSITION EITHER TO KNOW OR TO FORESEE WITH CERTAINTY THE RULES WHICH WERE ADOPTED ONLY AFTER THE ACCOUNTING PERIOD HAD COME TO AN END . IN THOSE CIRCUMSTANCES THE COMMISSION CANNOT RELY ON DISREGARD OF THE QUOTAS RETROACTIVELY FIXED IN 1983 BY REGULATION NO 172/83 IN ORDER TO REFUSE TO CHARGE TO THE FUND THE INTERVENTION PAYMENTS AND REFUNDS WHICH ARE THE SUBJECT OF THE ACTION .
19 COMMISSION DECISION 86/445 OF 1 JULY 1986 MUST ACCORDINGLY BE DECLARED VOID AS CLAIMED IN THE APPLICATION AND THERE IS NO NEED TO CONSIDER THE APPLICANT' S OTHER SUBMISSIONS .