C-61/77

applicant,

supported by

KINGDOM OF THE NETHERLANDS, represented by G. W. Maas Geesteranus, Legal Adviser at the Ministry for Foreign Affairs, acting as Agent, assisted by M. J. Kuiper, principal administrator in the Legal Advisers' Department of the Ministry for Agriculture and Fisheries, with an address for service in Luxembourg at the Netherlands Embassy,

intervener,

v

IRELAND, represented by Liam J. Lysaght, Chief State Solicitor, acting as Agent, assisted by R.J. O'Hanlon, S.C., with an address for service in Luxembourg at the Irish Embassy,

Facts and issues

The facts, the procedure and the Treaty' of 22 January 1972, contain conclusions, submissions and arguments provisions relating to fisheries. In of the parties may be summarized as particular, Article 102 provides that the follows: Council, acting on a proposal from the Commission shall determine, from the sixth year after accession at the latest, I — Facts conditions for fishing with a view to ensuring protection of the fishing On 20 October 1970, the Council of the grounds and conservation of the European Communities adopted, in biological resources of the sea. application in particular of Articles 42 On 19 January 1976, the Council and 43 of the EEC Treaty, Regulation adopted Regulation (EEC) No 100/76 (EEC) No 2142/70 on the common on the common organization of the organization of the market in fishery market in fishery products (OJ L 20, p. products (OJ, English Special Edition 1) and Regulation (EEC) No 101/76 1970 (III), p. 707) and Regulation laying down a common structural policy (EEC) No 2141/70 laying down a for the fishing industry (OJ L 20, p. 19). common structural policy for the fishing The first of those regulations repeals industry (OJ, English Special Edition Regulation No 2142/70 and the second 1970 (III), p. 703). Regulation No 2141/70. Articles 98 to 103 of the Act concerning On 8 October 1976 the Commission the Conditions of Accession and the submitted to the Council a proposal for Adjustments to the Treaties annexed to a regulation establishing a Community the Treaty, known as 'the Accession system for the conservation and

Atlantic coasts and that as from the In a resolution on certain aspects of the same date the exploitation of fishery internal fisheries system, the Council resources in these zones by fishing considered that the reconstitution and vessels of third countries would be protection of stocks in order to permit, governed by agreements between the an optimum yield from potential Community and the third countries Community resources required strict concerned. The Council accordingly control and Community-wide measures instructed the Commission forthwith to to that end. It recognized that the start negotiations with the third protection and the control of the fishing countries concerned in accordance with zone off Ireland must not result, the Council's directives and decided on because of the size of that zone, in a concerted action by the Member States charge, for that Member State, which for the purpose of future proceedings of was disproportionate to the volume of the international fisheries bodies, in the Community fish resources which particular the International Commissions could be exploited in that zone by the for North-West Atlantic Fisheries, fishermen of that Member State and North-East Atlantic Fisheries and agreed that the implementation of South-East Atlantic Fisheries. available means of surveillance or those On the same occasion the Council to be foreseen must be accompanied by approved a statement of the appropriate measures to ensure that the Commission (Annex VI to the charges which ensued would be shared resolution) in the following terms: equitably. Having regard to the economic relationships characterizing Pending the implementation of the fishing activity in Ireland, the Council Community measures at present in declared its intention so to apply the preparation relating to the conservation provisions of the Common Fisheries of resources, the Member States will not Policy, as further determined by the Act take any unilateral measures in respect of Accession, and adapted to take of the conservation of resources. account of the extension of waters to 200 miles, as to secure the continued However, if no agreement is reached for 1977 within the international and progressive development of the fisheries Commissions and if subse­ Irish fishing industry on the basis of the quently no autonomous Community Irish Government's Fisheries Develop­ measures could be adopted immediately, ment Programme for the development of coastal fisheries. the Member States could then adopt, as an interim measure and in a form which Finally, the Council took note of avoids discrimination, appropriate unilateral statements concerning its measures to ensure the protection of resolution on certain aspects of the resources situated in the fishing zones internal fisheries system, and in off their coasts. particular of a unilateral statement by

rights. On 20 December 1976 the Commission The fisheries problem was again submitted to the Council a sup­ discussed by the Council on 15 and 16 plementary proposal for a regulation on December 1976, when the Irish Minister conservation measures. for Foreign Affairs stated that if early On 14 January 1977, the Commission agreement was not reached on conser­ submitted to the Council a further vation measures, it would be necessary proposal for a regulation defining for Ireland to take such measures unilat­ certain interim fisheries resource conser­ erally. vation measures. On 3 December 1976, the Commission Article 1 (1) of that proposal provided submitted to the Council a proposal for that the right to fish in certain zones a regulation laying down interim located within 12 nautical miles from measures for the conservation and the base-lines of the Member States may management of fishery resources. These be limited to vessels not exceeding 85 interim provisions were to apply until feet in length or an engine power of the entry into force of the Community 1 000 horse-power. system and until 31 December 1977 at the latest. Article 2 of the proposed regu­ At its meeting on 18 January 1977, the lation provided that Member States Council was unable to reach agreement were to refrain from taking unilateral on the Commission's draft regulations, which the Irish Government considered measures for the conservation of fishery resources. inadequate.

Commission a communication from the On 11 March 1977, the Commission Minister for Foreign Affairs of Ireland submitted to the Council a proposal for announcing that his Government was a regulation fixing catch quotas for obliged to take unilateral conservation certain zones and procedures relating to action. fishing activity in those zones. It was On 16 February 1977, the Irish Minister impossible for the Council of Ministers for Fisheries made two orders for Agriculture to reach unanimous concerning sea fisheries. The first, the agreement on that proposal at its Sea Fisheries (Conservation and meeting on 26 and 27 March 1977. Rational Exploitation) Order 1977, At its meeting on 25 March 1977, the makes it an offence for any sea fishing Council discussed the revised boat to enter and remain and to fish in Commission proposals which, although a maritime area situated within that acceptable as interim measures to portion of the exclusive fishery limits of Ireland and the other Member States, Ireland which lies South of the parallel were not acceptable to the United of 56° 30' North latitude, East of the Kingdom. meridian of 12° West longitude and By a communication of 4 April 1977, North of the parallel of 50° 30' North the Irish Government informed the latitude. It is also an offence under the Commission that the unilateral measures order for any person on a sea fishing upon which it had decided would come boat to fish or to attempt to fish in the into force from 10 April and that area in question or for such a vessel to Member States would be invited to have fish on board unless the fishing submit fishing plans to it for approval was in accordance with law, or for the with a view to the later introduction of boat not to keep its fishing gear stowed a scheme on the lines proposed by the away while in the area. Commission. The second, the Sea Fisheries (Conser­ By letter of 2 May 1977, the vation and Rational Exploitation) (No Commission initiated against Ireland the 2) Order 1977 exempts from the procedure laid down in Article 169 of foregoing prohibition any sea fishing the EEC Treaty. In that letter it stated boat not exceeding 33 metres in that Ireland had failed to fulfil the registered length or having a main obligation incumbent on it under engine or engines not exceeding a total Community law, by introducing and of 1 100 brake horse-power. applying measures which were in On 18 February 1977 the Council practice discriminatory and which were adopted Regulation (EEC) No 350/77 inappropriate for their alleged purpose laying down certain interim measures of conservation. Accordingly, the Irish for the conservation and management Government was requested to submit its of fishery resources (OJ L 48, p. 28). observations to the Commission before

failed to fulfil its obligations and By order of 22 May 1977 ([1977] ECR reiterated its view that in the absence of 937) the Court, as an interlocutory an agreement on conservation measures measure, deferred a decision on the at Community level, the measures taken application submitted by the by it were necessary in the interests of Commission under Article 186 of the conservation of fish stocks in the waters Treaty, adjourned the resumption of the to which they applied. hearing to 22 June and ordered the parties to make a written report by 18 June 1977 on the result of their II — Written procedure negotiations. On 18 June 1977, the parties submitted By application lodged on 13 May 1977, to the Court a joint report and the Commission brought before the requested an extension of the date fixed Court, in pursuance of the second by the Court for the re-opening of the paragraph of Article 169 of the EEC oral procedure. Treaty, the alleged failure of Ireland to fulfil its obligations in the area of The Court, considering upon examin­ fishery conservation. ation of that report that 'the dispute might be amicably settled with the co­ On the same date, 13 May 1977, the operation of all the Member States Commission, in pursuance of Article having fishing interests in the sea area 186 of the EEC Treaty and of Article affected by the Irish measures', deferred 83 of the Rules of Procedure, submitted the hearing by order of 21 June 1977 an application for the adoption of and reserved the decision as to the interim measures in which it requested course the procedure was to take until it the Court to: had examined a second report to be (a) prescribe that the Government of submitted by the parties by 1 July 1977 at the latest. Ireland should formally suspend the Irish measures; or By order of 22 June 1977 the Court, in (b) if the Court prefers, prescribe that application of the first paragraph of the Government of Ireland should Article 37 of the Protocol on the Statute

The Court acceded to that request and The written procedure in the main fixed the resumption of the hearing at action followed the normal course. 11 July 1977. After hearing the repon of the Judge- On 8 July 1977, the Commission Rapporteur and the views of the submitted a report in which it declared Advocate General, the Court decided to that it was impossible for it to reach open the oral procedure without any agreement with the Irish Government preparatory inquiry. on the fishing plans under discussion by It requested the Irish Government and the parties. the Commission however to give written On 9 July 1977, the Irish Government replies to several questions before the submitted a repon in which it drew hearing. This request was complied with attention to the fan that there had just within the prescribed period. been a change of government and requested a 'substantial' adjournment of the Commission's application for III — Conclusions of the parties interim measures. The Commission claims that the Court The parues in the main action and the should: intervener presented oral argument and answered questions put by the Court at — Declare that by introducing the the hearing on 11 July 1977. The disputed unilateral measures in the Advocate General delivered a further area of fishery conservation, the Government of Ireland has failed to opinion at a second hearing on the same date. fulfil an obligation imposed on it by the Treaty; and On 13 July 1977 the Court, as an — Order the Government of Ireland to interlocutory measure ([1977] ECR 1411), ordered as follows: pay the costs of the proceedings. 1. Ireland shall suspend by 0.00 hours The Government of the Kingdom of the GMT on 18 July 1977 at the latest Netherlands, intervener, claims that the and until judgment has been given in Court should: the main action, the application, to fishing boats registered in any of the — Declare that by introducing the Member States, of the orders of the disputed unilateral measures Ireland Minister for Fisheries entitled the Sea has failed to fulfil an obligation Fisheries (Conservation and Rational imposed on it by the EEC Treaty; Exploitation) Order 1977 and the — Require the defendant to bear the Sea Fisheries (Conservation and costs of the proceedings. Rational Exploitation) (No 2) Order 1977. The Government of Ireland contends that the Court should: 2. Until judgment has been given in the main action Ireland may, with the — Reject the Commission's application; consent of the Commission, adopt in — Order the applicant to pay the costs the sea areas within its jurisdiction including the costs of the application any other measures intended to for interim measures. ensure the protection of fish stocks which are in accordance with the In its observations submitted in relation provisions of Community law and to 'the memorial filed by the Kingdom with the objectives of the common of the Netherlands, the Irish fisheries policy. Government contends moreover that the 3. Costs are reserved. Court should:

IV — Submissions and argu­ addition, they affect the negotiations in ments put forward by the progress between the Community and parties during the written third countries concerning fisheries. procedure The Government of the Kingdom of the Netherlands maintains that as a A — General observations consequence of the Irish measures a fundamental principle of the common The Commission declares that it fisheries policy is at stake and with it recognizes the need for measures of the policy itself. It recalls moreover that conservation of sea fisheries and for the Dutch fishermen have a direct interest special position of Ireland to be taken in access to and fishing in the waters to into account owing in particular to the which the Irish measures apply and that fact that the Irish fishing fleet, unlike those measures cause them considerable the fishing fleets of almost all the other damage. Member States, is composed almost The. Irish Government emphasizes the exclusively of small inshore fishing fact that fish stocks in the seas around boats. It recalls the principles of Ireland have been depleted to such an Community law applicable in the extent that certain stocks are imperilled fisheries sector, which were laid down and can be saved only if adequate in particular by Council Regulations measures of control are implemented Nos 100/76 and 101/76 of 19 January immediately. The inability of the 1976 and by the case-law of the Court Member States of the Community to of Justice, in particular the judgment of reach agreement not only on permanent 14 July 1976 in Joined Cases 3, 4 and measures but even on interim measures 6/76 (Cornelis Kramer and Others, made it all the more important that [1976] ECR 1279). It follows from that interim measures should be adopted judgment that national fisheries without delay to protect the fishing measures are compatible with stocks. Agreement in principle was Community law only if they comply however reached on a number of with three tests: they do not lead to objectives which were to form the basis differences in treatment of fishing boats for Community policy in the of other Member States and do provide development and preservation of fishery equal conditions of access; they are so resources for the future, in particular on designed as to keep their effect on the the urgent necessity for the restriction functioning of the common Community of fishing effort in the sea zones fisheries policy to the minimum; and referred to in the Irish regulations and they are, objectiveley considered, real conservation measures. Moreover, the on the consideration of the special Member States are not free to adopt problems of the Irish fishing industry. any measures, even measures having a Ireland's right to adopt conservation legitimate objective, which interfere measures is expressly acknowledged in more than is necessary with the Council Regulation No 350/77 of 18 operation of Community policies. February 1977.

particular equal conditions of access to and use of the fishing grounds It would be irrational if the basic situated in the waters referred to in provisions of the regulation laying down the preceding subparagraph for all a common structural policy for the fishing vessels flying the flag of a fishing industry of the Community were Member State and registered in to apply only to a small proportion of Community territory. the seas under Community jurisdiction. It would also be irrational for all the (a) The statement of the Irish requirements of Regulation No 101/76 Government that this provision does not to apply only within the traditional apply to seas which came under the narrow waters and for there to be no sovereignty or within the jurisdiction of Community rules at all applicable within Ireland subsequent to the date of the 200-mile zone. The claim of the adoption of the regulation amounts to a Irish Government would imply that contention that it does not apply to the Article 4 of Regulation No 101/76 gives seas within the 200-mile limit claimed the Council no power to adopt conser­ by agreement by all Member States with vation measures in waters outside the effect from 1 January 1977 but outside old 12-mile limit. the seas over which jurisdiction was exercised by Member States in January It is also inconsistent with several regu­ 1976. lations of the Council laying down

COMMISSION v IRELAND

certain interim measures for the conser­ The contention of the Irish Government vation and management of fishery should be clearly rejected by the Court. resources applicable to vessels flying the (b) Article 2 (1) of Regulation No flag of certain non-Member countries. 101/76 does not merely prohibit express These regulations clearly equate 'the or open discrimination. A number of 200 nautical mile fishing zones of the tests could be used in order to appraise Member States situated off the North the actual effects of the Irish measures.

This table clearly establishes the discrim­ distances in bad weather to fish, or to inatory nature of the measures in stay at sea for long periods, it seems dispute. clear that the Irish measures have a The second test is whether the discriminatory effect, though not a prohibition which applies in a large area readily quantifiable one. of the open Atlantic, most of it sub­ The third test is the extent to which stantially nearer to Ireland than to ports in other Member States, has a different boats from other Member States which effect with regard to boats based in are over the Irish size limits have until other Member States. now fished regularly in the zone to Since smaller boats are less able in which the orders relate. This infor­ practice regularly to travel long mation results from the following table:

Total fishing vessels of which over 33 m Member State normally operating in waters registered length and 1 100 affected by the Irish b.h.p. measures

Ireland 1 100 1 0.19

France 407 101 24.8

Netherlands 57 57 100

United Kingdom 26 — —

measures possible to achieve legitimate made. In any case, a discriminatory biological aims. In fact the ban on all measure is not made legal by being fishing in certain areas or at certain called an interim measure. Indeed, if the times of the year would be easier to Irish measures were genuine conser­ enforce with a limited number of fishery vation measures they would not be short-term in their nature. patrol vessels than the Irish measures which affect large vessels over a very large sea area. The Government of the Kingdom of the Netherlands considers that equal rights for all Community fishermen regarding (d) Both size and power alone, access to and use of fishing grounds is without more, are not directly related both an example of the principle of either to the total authorized catch or to non-discrimination embodied in the the total fishing effort and so cannot be EEC Treaty and a basis for the objective criteria for conservation common structural policy for the fishing measures. The Irish measures involve industry. Article 2 of Council Regu­ discrimination in substance: they treat lation (EEC) No 101/76 is directly the different situations identically. derived from Article 7 of the Treaty. The recitals of the preamble to the regu­ (e) Even if a limitation on the size of lation sute clearly that the Community the boats and the power of the engines fishermen must have equal access to and had been the only type of effective use of fishing grounds in maritime action open, and even if such a waters coming under the sovereignty or restriction should be regarded within the jurisdiction of Member objectively as a conservation measure, States. The case-law of the Court, in the limits laid down by the measures in particular the judgment of 23 January dispute were nevertheless unnecessarily 1975 in Case 51/74 (Hulst v discriminatory in their effects. Produktschap voor Siergewassen, [1975]

provision prohibiting discrimination. Regulation No 101/76 replaced Regu It is necessary to counter the argument lation No 2141/70. It had regard to the of the Irish Government based on the changed situation brought about by the formally objective nature of the accession of the new Member States measures in question by stating that the and recited that in applying the new essential point is the effect of those regulation the derogations provided for measures. Article 2 (1) of Regulation in Articles 100 to 103 of the Act of No 101/76 indicates 'shall not lead to' Accession should be taken into account. differences in treatment of other The overall situation in relation to the

valuable. coming within the jurisdiction of the The Irish Government denies that Member States. Article 2 (1) of Regulation No 101/76 is applicable in this case and contests (b) The three statistical tests relied that the orders of 16 February 1977 upon by the Commission, for the issued by the Minister for Fisheries are purpose of establishing that the Irish discriminatory. measures are discriminatory, are arbitrary and have no legal basis. (a) Article 2 of Regulation No 101/76 of 19 January 1976 took effect only in (c) The Commission has not shown relation to the maritime waters coming that the Irish measures are inconsistent

The Irish 101/76 that the maritime waters to measures do not discriminate on the which the Irish measures relate were not grounds of nationality and should not 'so described' by the laws in force in be regarded as discriminatory merely Ireland until the making of the because their impact on the fishing Maritime Jurisdiction (Exclusive Fishery activities of some Member States is Limits) Order 1976 (Statutory greater than on those of others, Instrument No 320 of 1976) which did including Ireland.

Ireland is empowered under consideration must be given to all the Community law to adopt conservation relevant factors in the case, including measures relating to the maritime waters the need for special support in the case coming under its control. Whatever the of the Irish fishing industry which measures adopted they would inevitably has been recognized in successive have a more serious effect on the fishing documents emanating from the industry of one or of several Member Commission itself. Special measures of States than on others. The measures support in such a situation should not which have been criticized were made be regarded as discrimination in favour applicable without distinction to all the of one Member Sute as against all Member States and therefore do not, others, but as a recognition of the according to the case-law of the Court, special needs of one Member State if it constitute discrimination prohibited by is to be brought eventually onto or Community law. Their application does equal footing with its other partner not make any distinction or differen in the development of a particular tiation between the ships of the various industry. Member States and the conditions of access to and use of the Irish fishing (f) Conservation measures were grounds are the same for fishing vessels demanded as a matter of urgent or ail the Member States.

this purpose. It has not been demonstrated that any other measures itself where virtually the entire fishing could have been adopted by Ireland on fleet falls within the prescribed limits. a unilateral basis which could have been Nor does Ireland dispute the fact that effectively implemented during the same these conservation measures, as any other conservation measures, were period and which would have achieved destined to cause substantial reduction the same objective of conservation of fish stocks while avoiding any criticism of fishing catches in Irish waters in the based on alleged inequality of short term to the fishing fleets from

into account. In the present case sought to be attained.

At the same time the industry is of A genuine policy for the conservation of major importance for Ireland in the maritime resources could only consist in numbers employed and in the yield for a combination of several different the Irish economy. measures, in particular restrictions on It is against this background that the the catch of certain species, fishing Irish measures must be assessed, and the areas, periods, methods and tackle. The criterion of 'boat size' cannot be used in challenge based on alleged discrimi­ nation must be viewed in the light of the isolation. It must necessarily be accepted need for urgent conservation integrated into a general restriction on measures and for indispensable the fishing effort. measures of support to be taken to bring about the development of the Irish (b) A measure which gives local fishing industry. coastal fishermen using small fishing boats preferential rights to fish in a given area may be justified in the light C — The question whether the measures of Community fisheries policy, in dispute are conservation measures depending on the circumstances, but it is not a measure primarily or exclusively for the conservation of the local fish The Commission does not contest that the Irish measures would, because of stocks. Allocating the fishing in a given area to specified boats or types of boats their discriminatory effects, tend to is not in itself a conservation measure. reduce the catches in the zone to which they apply. Nevertheless, they should The Irish measures prohibit all fishing not be regarded objectively as conser­ by large fishing boats, for any species, vation measures in the true sense of the even the species not in need of conser­ term. vation, over a very large area of sea which does not correspond to any fish (a) Introducing conservation measures stocks, throughout the year, for an consists in ensuring rational use of a unlimited period, irrespective of renewable natural resource, in other techniques or equipment. They do words exploitation on an optimum basis. nothing to limit the total number of fish This means regulating the fish mortality caught; or the total number of boats of each species due to fishing activities authorized to fish; or the total time by regulating the numbers of fish caught spent fishing: or the mesh size, and controlling fishing activities or equipment or techniques used. They do methods likely to interfere with repro­ not limit either the total catch or the duction or feeding or to injure the total fishing effort in the areas to which marine ecosystem. This involves or may they relate. They merely prevent large involve regulating the number of boats boats from taking part in that fishing

effort. Nor do they prevent fishing in of this justifies in any way a total ban spawning grounds or nurseries, nor do on fishing by large boats, while no they protect vulnerable areas from restrictions are imposed on smaller fishing by harmful methods. boats, on how many there are, on where and when they fish or for what (c) The reference by the Irish species, or with what equipment or Government to Regulations Nos 194/77 techniques. and 746/77 are irrelevant.

It would be unnecessary and entirely inappro (g) The Irish legislation adopted in priate to adopt such limitations for a 1952, 1959 and 1960 was adopted vast area of open ocean. A measure before Ireland joined the Community which results in reduced catches in one and should not necessarily be regarded area of the Community waters is not as a conservation measure, but rather as necessarily a sound conservation an economic and social policy measure. measure, from the Community point of It applied only within limits much

COMMISSION v IRELAND

Government may be legitimately .The Irish Government considers that the concerned to conserve and protect from complaint that the orders which have over-fishing. Member States are obliged been criticized are not genuine conser­ by Community law to limit any national vation measures is unfounded. measures which they may take for fish conservation or other legitimate (a) It is not in dispute that the critical purposes to the minimum necessary to situation which has arisen with regard achieve the objectives sought, so as to to fish stocks has coincided with the interfere as little as possible with the advent of large and powerful fishing operation of the Community policy. vessels in the post-war period. The The Irish measures are arbitrary and capacity of these vessels to remain for far-reaching, both geographically and in long periods in the fishing grounds, their effects on the operation of the their superior engine power, which Community. They prevent a large enables them to pursue shoals and number of fishing boats registered in the maintain contact with them, and their Community from fishing for any species ability to use larger and heavier fishing of fish, even those not in need of conser­ gear are all factors enabling them to vation, in a very large sea area make disproportionately greater inroads throughout the year, and for an on fish stocks than smaller and less

JUDGMENT OF 16. 2. 1978 — CASE 61/77

future. As such, they are appropriate to (e) The imposition of similar bring about a general and significant restrictions to those which are the limitation of fishing effort in the sea subject-matter of the orders in question areas concerned, in the intervening is not a new development in Irish law. period. This is shown by the Acts of 1952, 1959, 1960 and 1976. D — The effect of the Irish measures on external negotiations (f) The argument that the measures in question are arbitrary and unreasonable The Commission recalls that the by reference to the sea areas over which judgment of the Court of 14 July 1976 they take effect cannot be accepted. The in the Kramer case lays down two areas indicated relate to sub-zones principles. On the one hand, the recognized by the Community. They Member States are under a duty not to have regard to maritime waters of other enter into commitments which could Member States and facilitate both the hinder the Community in carrying out enforcement and observance of the the tasks entrusted to it by Article 102 orders. of the Act of Accession and, on the other, they are under a duty to proceed (g) Ireland does not describe the by common action within the context of entire sea areas referred to in the Irish international fisheries negotiations.

grounds. (a) The Irish Government and the (h) Ireland was entitled to have regard other Member States agreed in the to the general Community policy in European Council at The Hague of 30 relation to fisheries and to opt for October 1976 to authorize the measures which would permit the Irish Commission to negotiate fisheries fishing industry to continue to arrangements with non-Member States. endeavour to meet the target of A power once jointly conferred cannot increased annual catches. By reason of be unilaterally withdrawn in whole or in the minimal share taken by Irish a substantial part.

nevertheless only in so far as they national legislative powers in that area constituted real conservation measures without regard to the consequences, for limited to the minimum necessary. the Community's negotiating position, of their actions. Unilateral national measures affecting a large number óf boats over a large sea (e) Member States must refrain from area, in particular when adopted by a Member State having sovereignty or unilaterally adopting national measures jurisdiction over a large proportion of inconsistent with agreements already Community seas, call in question the made by the Community with non- credibility of the Community in Member States. They are also under a negotiations with non-Member States. duty to prevent the Community from being faced with the difficult, if not The Community cannot negotiate satis­ impossible, task of negotiating the terms factorily if rights which it proposes to of a further agreement with a non- grant, on an appropriate basis, to boats of a non-Member State are withdrawn Member Sute and for this purpose, defining clearly to what extent that or drastically reduced by unilateral agreement modified each national action while negotiations are measure. Bearing in mind that the continuing. arrangements made with non-Member Sutes inevitably differ from one (c) If the Irish measures are another, the complexity of the considered as compatible with arrangements which would result, Community law other Member States assuming that they could be successfully would also be free to adopt unilaterally made at all, would be intolerable. The similar measures. Such national complexity of the external negotiations measures might extend to the entire sea with each non-Member Sute would be area under national sovereignty or multiplied by the number of Member jurisdiction. It would clearly be States which had adopted national impossible for the Community to measures.

(g) The Irish measures exerted an A number of such agreements have in adverse influence in particular on the fact been concluded and it is difficult to negotiations with the USSR, which see how substantive provisions relating contested the effectiveness of the to quotas and fishing areas can be control by the Community of the added to these agreements or to Community fisheries, with Canada and agreements at present under negotiation the USA, which questioned the until the internal regime has been Community's power to enter into inter­ established. national agreements on fisheries or to ensure that they are carried out, with (c) None of the dangers referred to by Norway, which claimed that the balance the Commission with regard to the of the arrangements agreed between the negotiations being conducted with the Community had been upset in order to USSR, the United States and Canada request renegotiation of them, and with has arisen. certain other non-Member States which With regard to the other non-Member threatened to take retaliatory measures. countries, no actual threat of retaliation (h) The Irish measures are so dis­ against Community vessels has up to now materialized. ruptive of the proper functioning of the common fisheries policy that they The exclusion of three Norwegian should be regarded as contrary to fishing boats from the zone covered by Community law. This argument is the Irish measures was attributable to an confirmed by the considerations erroneous application of the measures in explained by the Court in its Opinion of question. 26 April 1977 on the draft Agreement establishing a European laying-up fund (d) The reference to the judgment of for inland waterway vessels (Opinion the Court in the Kramer case cannot be 1/76, [1977] ECR 741). accepted. That case was primarily concerned with the situation where a The Irish Government is of the opinion Member Sute enters into international that the Commission gives no valid commitments independent of those example of the serious damage which negotiated in respect of the Community. the measures which have been criticized are said to have caused to negotiations (e) The fears expressed by the with non-Member States. Commission about negotiations with third countries are either illusory, or (a) Any such negotiations must else emanate from the general problems inevitably be conducted with due regard of negotiating a satisfactory external for conservation measures, whether policy before an adequate internal interim or permanent, which require to regime has been agreed by the Member be taken to preserve fish stocks in States. Community waters and those of the third countries concerned. E — The effect of the Irish measures on (b) What are under negotiation at the common fisheries policy present are framework agreements with non-Member States which do not The Government of the Kingdom of the contain any provisions as to quotas and Netherlands takes the view that it fishing areas and cannot be affected by follows from the principle of equal short-term conservation measures since access to and use of fishing grounds in any case they are subject to the that the maintenance of fish stocks is a outcome of negotiations for a Community responsibility, as is permanent internal regime. emphasized by certain of the recitals of

the preamble to Regulation No 101/76. the accession of the new Member With regard to that need to safeguard States. Until such measures are adopted fish stocks, the conditions for fishing the interests of the Community as a must therefore be determined at whole demand that a free-for-all Community level, as Regulation No situation should not be allowed to 101/76 envisages for the future and as prevail in the maritime waters to which Article 102 of the Act of Accession the Irish measures relate. The Hague

Unilateral measures were adopted by It would be quite incorrect to conclude the United Kingdom in relation to the from the judgment in the Kramer case North Sea and were followed in due that measures such as those now at issue course by Community measures dealing are in principle permissible. It is with the same sea areas and fishing necessary to take into account the activities. temporary nature of the catch Internal negotiations on Community restrictions at issue in this case, of the proposals had proved fruitless over a sute of Community legislation at that period of many months before the Irish time, and particularly of the time-limit interim measures were adopted.

vessels. All of them very dependent on (a) Articles 102 and 103 of the Act of the exploitation of the fishing grounds Accession impose an obligation on the adjacent to the Irish coast. Catches in institutions of the Community to that area during the summer are promulgate conservation measures traditionally of crucial importance for within a limited period following upon the yearly average yield and therefore

Decision

1 By application of 13 May 1977, the Commission has brought an action under Article 169 of the EEC Treaty for a declaration that, in applying certain restrictive measures in the seas fisheries sector, Ireland has failed to fulfil its obligations under the Treaty.

Background to the dispute, connexion with Case 88/77 and the interim measures

2 The parties are not in dispute regarding the underlying facts of the case.

3 The first of these is that, at its meeting in The Hague on 30 October 1976, the Council adopted a resolution (hereinafter called The Hague Resolution'). Which was formally approved on 3 November 1976, whereby it was agreed that, with effect from 1 January 1977, the Member States

COMMISSION v IRELAND

9 It is to be noted that the Irish Government took an active part in the work of the Council on this question and, on 13 December 1976, submitted additional proposals to supplement the conservation measures put forward.

10 These proposals contained a number of provisions, including one for the exclusion of factory ships, the creation of special conservation zones for

JUDGMENT OF 16. 2. 1978 — CASE 61/77

certain stocks, the prohibition of certain methods of fishing and the exclusion of fishing boats of over 85 feet or 1 000 horse-power from an area extending 20 miles from the coast.

11 At this suge of the proceedings, the Irish delegation repeatedly drew the Council's attention to the urgent need to take conservation measures and made it clear that, in the absence of early agreement, Ireland would find itself compelled to act unilaterally.

12 As this warning was repeated with some force during the meeting of the Council on 8 and 9 February 1977 (which, too, proved fruitless) the Commission, in a message dated 11 February 1977, drew the attention of the Irish Government to the fact that The Hague Resolution provides that before adopting conservation measures a Member Sute must have consulted and sought the approval of the Commission, adding that discussions in the Council are no substitute for that procedure.

16 At the meeting on 25 March 1977 it was clear that there was in fact a large measure of agreement amongst the members of the Council, including Ireland, on the latest proposals of the Commission but a decision could not be taken on that occasion because of the opposition expressed by one of the Member States.

17 Faced with this setback, the Irish Government, by letter of 4 April 1977, informed the Commission that the orders of 16 February 1977 would be made effective from 10 April 1977.

18 Following this unilateral action by Ireland the Commission initiated the pre­ liminary procedure in Article 169 of the EEC Treaty which led to the matter coming before the Court of Justice.

Connexion with Case 88/77

19 By order of 7 July 1977, in relation to a prosecution brought against the Masters of certain Netherlands trawlers who were charged with having contravened the prohibitions arising under the orders of 16 February 1977, the District Court for the District Court Area of Cork City (Ireland) referred certain questions to the Court of Justice under Article 177 of the EEC Treaty for a preliminary ruling which would enable it to assess the compatibility of those measures with Community law.

20 In connexion with that case, which was entered at the Court of Justice under No 88/77, observations were submitted by the parties to the main action, by the Governments of the French Republic and of the Kingdom of the Netherlands and by the Commission.

24 The Court granted this request by successive orders of 22 May, 21 June and 13 July 1977 ([1977] ECR 937 and 1411) the last of which ordered Ireland to suspend the contested measures by 18 July 1977 at the latest.

25 The Irish Government has announced that it has refrained from implementing the contested measures as from the date set in the order of the Court after giving the necessary instructions to the competent auth­ orities and that nothing more needed to be done because the order 'has had the force of law in Ireland' as from the date laid down therein for it to come into effect 'and consequently has had the effect of suspending, in accordance with its terms, the two Sea Fisheries Orders as from that time'.

26 According to the explanations given, this follows from the provisions of the Irish Constitution and from the European Communities Act 1972, which gives the law of the Communities (including the judgments and orders of the Court of Justice) precedence over domestic Irish law.

27 The Commission, to which this statement was in turn communicated, raised no objection to it.

The law to be applied

28 In common with all other economic activities, fisheries come under the EEC Treaty and, more particularly, are treated as agriculture under the terms of

33 Article 1 of the latter regulation reads:

'Common rules shall be laid down for fishing in maritime waters and specific measures shall be adopted for appropriate action and the co-ordi­ nation 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 the rational use of the biological resources of the sea and of inland waters'.

JUDGMENT OF 16. 2. 1978 — CASE 61/77

34 Article 2 (1) reads:

'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 Sute and registered in Community territory'.

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.

COMMISSION v IRELAND

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'.

38 The Irish Government has raised an objection concerning the geographical area of application of Regulation (EEC) No 101/76.

39 The Irish Government refers to the provision in Article 2 (3) of Regulation (EEC) No 101/76, which reads: 'The maritime waters referred to in this article shall be those which are so described by the laws in force in each Member State', and contends that the regulation in question took effect only in relation to Irish maritime waters as they were defined at the time of entry into force of the regulation, prior to the extension of the fishing zones on 1 January 1977.

44 This was the underlying conception in Article 2 (3) of Regulation (EEC) No 101/76, which applies to maritime waters coming within the jurisdiction of a Member Sute under its laws, regardless of their date of entry into forcé.

45 In order to determine the geographical area to which Regulation (EEC) No 101/76 applies, its provisions must be interpreted in the light of the legal context in which, both as regards its subject-matter and its purpose, the regulation appeared.

46 As institutional acts adopted on the basis of the Treaty, the regulations apply in principle to the same geographical area as the Treaty itself.

47 Article 2 (3) of Regulation (EEC) No 101/76 must therefore be understood as referring to the limits of the field of application of Community law in its entirety, as that field may at any given time be constituted.

48 Consequently, the reference in that provision to the 'laws in force' in the various Member States as describing the maritime waters coming under their sovereignty or within their jurisdiction must be interpreted as referring to the laws applicable from time to time during the period of validity of the regulation concerned.

49 This interpretation is the only one which accords with the subject matter and purpose of the regulation, which is to establish a common system for fishing throughout the whole of the maritime waters belonging to the Member States.

54 In consequence the dispute resolves itself into four groups of arguments, submitted with varying emphasis by the parties appearing in the proceedings in each of the two cases, and these arguments relate to

— the jurisdiction of Ireland;

— the action taken in this instance by the Irish Government;

— the question whether the Irish measures can be regarded as genuine conservation measures; and

— the question whether, in introducing these measures, Ireland contravened the non-discrimination rule enshrined in Article 7 of the Treaty and in Regulation (EEC) No 101/76.

55 Consideration must first be given to the question of jurisdiction, which has a bearing on all the other submissions, including the possibility of a breach of the non-discrimination rule.

59 The French Government, in the statement lodged in Case 88/77, emphasizes the fact that the fishing policy is a Community one, as is made clear both in Article 38 (1) of the EEC Treaty and by the successive regu­ lations and the fact that this is confirmed as the position in law, particularly as regards the conservation measures, by Article 102 of the Act of Accession and The Hague Resolution.

60 This standpoint also has the authority of the Court's decision in the Kramer case.

61 The 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.

62 The conclusion which the French Government draws from these considerations is that all unilateral measures of the Member States in that sector offend against Community law once the Community has assumed its full powers of the transitional period provided for by Article 102 of the Act of Accession has expired.

63 As 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.

64 In so far as this power has been exercised by the Community, the provisions adopted by it preclude any conflicting provisions by the Member States.

69 The 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.

70 It would appear that there are scarcely any boats in the Irish fishing fleet which exceed the limits specified in the contested orders, apart from two boats one of which has certainly never fished in the prohibited area, whereas the measure seriously handicaps the fleets of certain other Member States, in particular of France and of the Netherlands.

71 Furthermore the measures create differences of treatment between the various Member States in that the Netherlands fishing fleet, which is mainly made up of large boats is wholly cut off from the waters in question and the same applies, but to a lesser extent, to the French fishing fleet whereas, because of its composition, the British fishing fleet has escaped entirely.

JUDGMENT OF 16. 2. 1978 — CASE 61/77

72 Thus, by these measures, Ireland has breached the general non-discrimi­ nation rule in Article 7 of the EEC Treaty and the provisions of Article 2 (1) op Regulation (EEC) No 101/76, to which reference was made in Annex VI to The Hauge Resolution.

73 These strictures were supported by the French and Netherlands Govern­ ments, which consider that an attack has in this way been made on one of the indispensable foundations of the common fishing policy.

COMMISSION v IRELAND

fished in those areas whereas under the same measures no comparable obligation is imposed on Ireland's own nationals.

so 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 81 The Commission, supported by the French and Netherlands Governments, further maintains that the Irish measures cannot be regarded as genuine conservation measures.

82 It does not appear necessary to resolve that issue since it has been possible to establish that the Irish measures are discriminatory on the basis of the foregoing considerations.

83 During the proceedings various criticisms have been made concerning the conduct of the Irish Government and of the difficulties which it has placed in the way both of the attainment of a common fishing policy and of the protection of the Community's interests in the negotiations with third countries.

88 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

89 The defendant has failed in its submissions.

On those grounds,

THE COURT

hereby: 1. Declares that, by bringing into force the orders of the Minister for Fisheries of 16 February 1977 entitled 'Sea Fisheries (Conservation and Rational Exploitation) Order, 1977' and 'Sea Fisheries (Conser­ vation and Rational Exploitation) (No 2) Order, 1977', Ireland has failed to fulfil its obligations under the Treaty establishing the European Economic Community. 2. Orders Ireland to pay the costs of the action, including those of the applications for interim measures.

Kutscher Sørensen Bosco