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Document 61977CC0061(02)
Opinion of Mr Advocate General Reischl delivered on 19 January 1978. # Commission of the European Communities v Ireland. # Sea fisheries. # Case 61/77.
Stanovisko generálního advokáta - Reischl - 19 ledna 1978.
Komise Evropských společenství proti Irsku.
Věc 61/77.
Stanovisko generálního advokáta - Reischl - 19 ledna 1978.
Komise Evropských společenství proti Irsku.
Věc 61/77.
ECLI identifier: ECLI:EU:C:1978:7
OPINION OF MR ADVOCATE GENERAL REISCHL
DELIVERED ON 19 JANUARY 1978 ( 1 )
Mr President,
Members of the Court,
The Court has already on several occasions in the past year concerned itself with the case on. which I am giving my opinion today, on the basis of an application under Article 83 of the Rules of Procedure of this Court. I may therefore restrict myself, so far as describing the facts is concerned, to a few observations.
On 30 October 1976 the Council held a meeting in The Hague. At that meeting various resolutions relating to the fisheries' questions were adopted which were formally approved on 3 November 1976.
The most important of these was the decision that, as from 1 January 1977, the Member States would, by joint action, extend their fishing zones to 200 miles off their North Sea and North Atlantic coasts. Ireland, the defendant in these proceedings, did this by an order of 22 December 1976.
At the meeting in The Hague Community measures for the conservation of fish stocks were also discussed. A statement of the Commission, which was approved by the Council and forms Annex VI to the Hague Resolutions, relates thereto, and I would like to quote the complete text thereof because of its importance for the present case. That statement provides that:
‘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 Community provisions on the conservation of resources.’
So far as common efforts for the adoption of interim conservation measures were concerned, it is necessary to mention proposals for regulations submitted by the Commission on 3 December 1976 (Document No 3 annexed to the application), 14 January 1977 (Document No 5) and 11 March 1977 (Document No 13). None of these moves was however successful; during this period solely several limited regulations containing conservation measures were adopted, such as Regulation No 194/77 of 28 January 1977OJ L 25 of 29. 1. 1977, p. 46), Regulation No 350/77 of 18 February 1977 (OJ L 48 of 19. 2. 1977, p. 28) and Regulation No 373/77 of 24 February 1977 (OJ L 53 of 25. 2. 1977, p. 1).
This sute of affairs prompted the Irish Minister of Foreign Affairs to announce to the Commission on 14 February 1977 the intention of the Irish Government to adopt unilateral conservation measures, the essential features of which were indicated. These measures were adopted on 16 February 1977 and were, first, the Sea Fisheries (Conservation and Rational Exploitation) Order 1977, which contained a prohibition, applicable to all fishing vessels, on remaining and fishing in a specific area of the sea defined according to degrees of latitude and longitude, and, secondly, the Sea Fisheries (Conservation and Rational Exploitation) No 2 Order 1977, according to which the above-mentioned prohibition was not applicable to vessels not exceeding 33 metres in length or having an engine power not exceeding 1100 brake horsepower. These regulations, which were adopted by the Irish Ministers for Fisheries and which I shall henceforth call ‘the Irish measures’ for short, were originally to come into force on 1 March 1977. This was not however the case for the time being, mainly because of pressure applied by the Commission which inter alia held a meeting on this question on 21 February with representatives of the Irish Government and representatives of the other Member States. On the contrary, the measures were put into force only on 10 April 1977 after a Council meeting at the end of March 1977 had failed to reach agreement on common conservation measures. At the same time the Irish Government, and I shall return to this again, invited the other Member States to submit to it for approval fishing plans which were to take the place of the above-mentioned measures where appropriate.
The Commission, which had already described the Irish measures as incompatible with Community law in the meeting at the end of March 1977, just as moreover the majority of the Member States had declared themselves to be against the measures at the meeting on 21 February 1977, thereupon decided to initiate the procedure under Article 169 of the EEC Treaty for a declaration that Ireland had failed to fulfil its obligations under the Treaty. This was done by letter of 2 May 1977 in which the Irish Government was informed that the measures were discriminatory, that they were not genuine conservation measures and that in addition their effects on the common organization of the market in fishery products were not, as was necessary, kept to the minimum. Following a reply by the Irish Government on 6 May 1977 which was in the Commission's view unsatisfactory, the Commission delivered a formal opinion as provided for in Article 169. On 13 May 1977, when the period laid down therein for the suspension of the Irish measures (10 May 1977) had expired without this being done, the Commission brought the matter before the Court of Justice, which must now decide whether the Irish Government has or has not been in breach of provisions of Community law.
Before I examine this question I should like however to recall once more that when the procedure was initiated an application for the adoption of interim measures was also lodged under Article 83 of the Rules of Procedure of the Court of Justice. This resulted, after the oral procedure on 21 May 1977, in an order issued on 22 May deferring a decision on the application for the time being in order to give the parties an opportunity to reach agreement on alternative solutions. Reports were to be submitted thereon within a specific period which was extended several times. Following this and the re-opening of the oral procedure on 11 July 1977, the Court issued a second order on 13 July 1977 in which Ireland was ordered to suspend the application of the measures in question with regard to vessels from other Member States by 18 July 1977 at the latest. It was moreover added that Ireland could, with the consent of the Commission, adopt other conservation measures which were in accordance with the provisions of Community law and compatible with the objectives of the common fisheries policy. In fact, as the Court was assured, the measures thereupon ceased to be applied as from 18 July 1977 and fishing activity was able to continue in the area concerned since no other measures were adopted.
In addition, I should like to mention that an Irish court has also asked the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty on the problem of the permissibility of the Irish measures. This request, which forms the subject-matter of Case 88/77, is of course dealt with in a separate opinion. Nevertheless I consider it correct and appropriate to examine in the present case arguments from that other case which have been put forward by other parties, for it seems to me to be unjustifiable to reach a decision concerning the alleged failure to fulfil obligations under the Treaty without considering all aspects which are of interest to the case.
1. |
Council Regulation No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (OJ L 20 of 28. 1. 1976, p. 19) is essential with regard to the allegations which the Commission has made against Ireland on account of the above-mentioned measures. Article 1 thereof — I shall not at present deal with the whole of its contents — speaks of laying down common rules for fishing in maritime waters and the coordination of structural policies of Member States for the fishing industry. Article 2 provides that rules applied by each Member State in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction must not lead to differences in treatment of other Member States and that the Member States must ensure equal conditions of access to and use of the fishing grounds situated in the waters referred to in Article 2 (1) for all fishing vessels flying the flag of a Member Sute and registered in Community territory. In addition, Article 4 provides that: ‘Where there is a risk of over-fishing of certain stocks in the maritime waters referred to in Article 2, of one or other Member Sute, the Council, acting in accordance with the procedure provided for in Article 43 (2) of the Treaty on a proposal from the Commission, may adopt the necessary conservation measures. In particular, these measures may include restrictions relating to the catching of certain species, to areas, to fishing seasons, to methods of fishing and to fishing gear.’ The Irish Government principally replies that these provisions; and in particular Article 2, apply only to waters which were under the sovereignty of the Member States at the date on which the regulation was adopted. It claims that the wording of Article 2 (2) indicates this, stating that: ‘The maritime waters referred to in this article shall be those which are so described by the laws in force in each Member State.’ At the relevant date there were however no 200-mile zones but, as far as Ireland was concerned, only a 12-mile zone. Since on the other hand it is an established fact that the Irish conservation measures were to be applied first and foremost outside that area, they could not be compared with Regulation No 101/76 as long as it had not been made clear by an amendment of the legal situation that the provisions laid down in Regulation No 101/76 were to apply also to the extended sovereign waters. This issue could per se be left aside if the only question involved were whether the Irish measures infringe the principle of equal treatment. In this respect it would in fact be possible to reach an appraisal even regardless of Regulation No 101/76, and I shall have to return to this point again, since, as we have seen, Annex VI to the Hague Resolutions also contains a prohibition on discrimination as does Article 7 of the EEC Treaty, which even in the view of the Irish Government applies to all the Irish sovereign waters. I should like however to examine the question which has been raised nevertheless, since Regulation No 101/76 in the view of the Commission is also that the definition contained in Article 2 (3) is meant to be determining only with regard to the prohibition on discrimination but not with regard to the other principles contained in the regulation. I consider that the surprising argument put forward by the Irish Government is incorrect for the following reasons. In the first place I have the impression that it is in fact easier to deduce from Regulation No 101/76 the contrary of the Irish viewpoint. The wording of Article 2 (3) which has been quoted is so general that, in accordance with the principle that the territorial scope of the Common Market is determined by the territories of the Member States at the time — and I do not wish to put forward any considerations of public international law — it may be immediately understood as meaning that the national provisions which were in force at the date on which the regulation was adopted are not the decisive factor but the national provisions applicable at the time in question. If any other finding were reached, this would lead, in view of the fact that the definition contained in Article 2 (3) applies to the whole regulation, to the completely unacceptable result that if the sovereign waters were extended without express amendment of the regulation a common structural policy would only be possible with regard to a small proportion of the Community waters, in other words to an extent which in the nature of the case would not permit of useful measures. It also seems to me to be important to refer to Article 102 of the Act Concerning the Conditions of Accession and the Adjustments to the Treaties which provides that: ‘From the sixth year after accession at the latest, the Council, acting on a proposal from the Commission, shall determine conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of the biological resources of the sea.’ There is no doubt that this article provides for Community jurisdiction over all the sovereign waters as they stand at the time, so that the idea that there might be sovereign waters outside the jurisdiction of the Community, in respect of which it would be possible to adopt without further ado purely national measures relating to fishing and the protection of the fish stocks, seems incompatible therewith. In addition, I consider that the deductions which may be made from the above-mentioned Hague Resolutions as a whole with regard to the problem which is of interest in this case are of particular importance. First, it is essential that they speak of the creation of a 200-mile fishing zone in the Community and that the limits of the fishing zones were extended by means of concerted action, in other words, the extension of the jurisdiction originated in an act of the Community. It was accordingly provided that the fishing rights of third countries in these zones were to be governed by agreements entered into by the Community containing reciprocal obligations and that the Commission would be instructed to conduct negotiations. Annex VII accordingly also speaks of ‘ressources communes’ (Community resources) and Community-wide measures with regard to the internal fisheries system and in relation to all the sovereign waters; in other words it is assumed that the provisions on Community policy apply to all the sovereign waters. In addition, it is clear that Annex VI, which was quoted above and speaks of common conservation measures at present in preparation and according to which unilateral measures are only permissible under certain conditions, also relates to all the sovereign waters, which can only mean that there is an assumption of Community sovereignty and an acceptance that Article 4 of Regulation No 101/76 is valid. Finally it is not only of interest that in the judgment of the Court in Joined Cases 3, 4 and 6/76 (Cornells Kramer and Others, Judgment of 14 July 1976, [1976] ECR 1279), to which I shall return again, it is stated that it follows from the very nature of the case that the rule-making authority of the Community ratione materiale also extends — in so far as the Member States have similar authority under public international law — to fishing on the high seas. For the purpose of refuting the argument put forward by the Irish Government it is also possible to refer to regulations which were issued subsequently, in particular Regulation No 350/77 (OJ L 48 of 19. 2. 1977, p. 28) and Regulation No 1412/77 (OJ L 160 of 30. 6. 1977, p. 5), as also to a number of other regulations quoted by the Commission containing similar provisions. For an analysis of them, I would refer in detail to the statements made by the Commission. I should only like to point out that the conservation measures which they laid down relate to the whole 200-mile zone and that the scheme of their provisions makes it clear that the Community legislature assumes a rule-making power in the fisheries sector which covers the national sovereign waters. This can only mean, in particular if Articles 1 and 4 of Regulation No 1412/77 are considered together, confirmation of the assumption that Regulation No 101/76 refers without express amendment to the extended sovereign waters. I cannot understand how it is possible nevertheless to put forward the argument that the Community rules contained in the above-mentioned regulation did not extend to the area in which the Irish measures were to apply. |
2. |
Secondly, it is necessary to examine the question whether at the time in question it was at all possible to adopt national measures for conservation of the fish stocks or whether only the Community institutions had powers in this areas. This is an argument which was put forward by the defendants in the procedure which gave rise to the request for a preliminary ruling in Case 88/77. It is necessary in any case only to apply it to the waters beyond the 12-mile zone; it is in other words necessary in this connexion, as in general in the present case, to disregard the coastal waters as defined in Articles 100 and 101 of the Act Concerning the Conditions of Accession since it was declared that in respect thereof derogations from the common policy and in particular special fishing restrictions were permissible. Those who support the argument that national measures are not permissible rely above all upon the abovementioned Article 102 of the Act Concerning the Conditions of Accession and upon Article 4 (1) of Regulation No 101/76, which is also quoted above. In addition they do not permit references to the judgment in the Kramer Case (Joined Cases 3, 4 and 6/76) on the ground that at that time the situation was different. They take the view so far as the reference to the Hague Resolutions is concerned — which of course speak of unilateral measures — that the purpose of those resolutions was not to amend Regulation No 101/76 and that they could not in addition have done so. Above all, they claim that the Council in fact decided transitional measures for the conservation of the fish stocks at the beginning of 1977 and thus exercised its powers. So far as these submissions are concerned, it is certainly impossible to deny that Community jurisdiction exists in the field of measures for the conservation of the fish stocks and that in this connexion Article 4 of Regulation No 101/76 is of central importance. It is necessary however to bear in mind that a similar provision was already contained in Article 5 of Regulation No 2141/70 (OJ, English Special Edition 1970 (HI), p. 703) and that in the Kramer case however no objections were made to national conservation measures. The fundamental reason for this was that the Community institutions had not until then exercised the power to adopt Community rules. It was expressly emphasized that the Member States at that time had the power to act because the Community had not yet fully exercised its functions. The same situation obviously existed at the beginning of April 1977 too, for it must be borne in mind that the Community measures which had actually been adopted until then were not comprehensive but only applied to parts of the sector. In this connexion I should like to refer to the relevant regulations. It is impossible however to contest that the facts in the Kramer case were actually different in some respects from those in the present case. In particular national measures were adopted at that time within the framework of the implementation of undertakings affecting the Netherlands within the context of the North-East Atlantic Fisheries Convention of 24 January 1959. Rules were therefore involved which were binding on all the States concerned and all the Member States except Italy and Luxembourg were parties to the Convention in addition to seven non-Member countries. I am however not certain on the one hand whether this factor is decisive and on the other it may be said that reference must not be made exclusively to the Kramer case for the purpose of justifying the argument diat national conservation measures are permissible. I need only recall Annex VI to the Hague Resolutions which has already been quoted at the beginning and in which it is clearly stated that national measures are permissible under certain conditions. It is also impossible to raise the objection that these resolutions were not intended to amend and could not have amended Regulation No 101/76. Nor is this in fact their purpose; on the contrary, they were only intended to make it clear, as did also the judgment in the Kramer case, that in fact, as long as the Community has not exercised its powers, national measures may be adopted if necessary. Finally reference may also be made in this connexion to the recitals of the preamble to Regulation No 350/77 of 18 February 1977 laying down certain interim measures for the conservation and management of fishery resources. The recitals of the preamble thereto expressly state as follows: ‘Whereas pending the establishment of a Community regime for the conservation and management of resources, and notwithstanding the provisions of the present regulation, Member States may, in accordance with the procedure and conditions set out in Annex VI to the Council Resolution of 3 November 1976, adopt, in a form which avoids discrimination, appropriate further measures to ensure the protection of resources situated in the fishing zones off their coasts.’ Since, however, as I have already said, only partial rules existed in April 1977 and a comprehensive policy was merely being discussed but was not yet achieved it is in fact impossible to contest that at that time national conservation measures were in principle still permissible. |
3. |
The crucial condition with regard to conservation measures, as I have already mentioned, is naturally that they are necessary, in other words that in a certain area the fish stocks have already been considerably reduced or that there is an immediate danger of over-fishing and without restrictions and measures of protection regeneration and thus future supplies are endangered. It is possible to receive the impression from certain submissions made by the Commission and other circumstances which came to light during the procedure that it is necessary to answer this question in the negative so far as the Irish measures are concerned. In this connexion I am thinking of the reference made by the Commission to the considerable decrease in catches by third countries on account of the measures adopted by the Community after 1 January 1977. Although in the area in question over 400000 tonnes were fished by vessels from third countries in 1976, in 1977 this is said to have been only approximately 130000 tonnes. In particular a comparison of the quotas for specific species of fish to which Soviet vessels in Zone VII, which is of interest in this case, were entitled on the one hand in 1975 and on the other in 1977 is impressive, as is a contrast with the total catches made by the Community in the abovementioned zone in 1975, bearing in mind in this connexion that a reduction in the quotas also involves a decrease in ancillary catches. Moreover, I am thinking of the Community measures for the restriction and prohibition of herring fishing which likewise resulted in a considerable improvement. In addition, it is necessary to recall the fact that following the order of the Court of Justice the application of the Irish measures was suspended as from 18 July 1977 and that no other measures, such as the laying down of fishing plans and such-like, were adopted in their place. It became clear upon closer examination nevertheless that the need for national conservation measures in April 1977 cannot be simply denied on that ground. It is necessary of course to disregard measures which were subsequently adopted by the Council, for example Regulations Nos. 1672/77 (OJ L 186 of 26. 7. 1977, p. 27), 1709/77 (OJ L 189 of 29. 7. 1977, p. 8) and 1779/77 (OJ L 196 of 3. 8. 1977, p. 4) which were adopted at the end of July or the beginning of August 1977, because the decisive factor is the date of the application of the Irish measures and perhaps the law-suits which were foreseeable in this connexion. With regard to the restrictions on certain catches by third countries, which were, incidentally, subject to a time-limit, it is moreover of importance that such Community measures already existed at the beginning of 1977, such as for example Regulation No 194/77 of 28 January 1977 and Regulation .No 373/77 of 24 February 1977. This did not prevent the Commission from making proposals for conservation measures in March 1977. In those proposals it was acknowledged that certain stocks in the Irish waters were over-fished and that measures relating to important species of fish in Zones VI and VII were particularly urgent. They therefore provided for a reduction of 41 % in the catches for 1977. In view of this the Commission did not indeed contest the need for conservation measures per se, and again did not do so during the oral procedure, but merely stressed that the situation was less dramatic than portrayed by the Irish Government because of the reduction in catches by third countries. Finally, it is impossible to conclude from the conduct of Ireland following the order made by the Court of Justice on 13 July 1977 that the Irish measures were unnecessary from the outset. In this connexion Community measures which had been adopted in the meantime or were imminent and the fact that the Irish measures had been effective for a considerable period of time may have been of importance, and it may therefore have seemed less urgent to adopt drastic unilateral measures. In addition, it was not explained during the procedure why the fishing plans originally sought by Ireland did not materialize. Without such an explanation however it is impossible to repudiate the assumption that practical reasons prevented their being put into effect, because for example the information received was inadequate and the necessary system of control, which could only function in collaboration whith other Member States, could not be achieved. For all these reasons I tend not to criticize the Irish measures on the ground that there was in principle no need for them. Of course the further question, which it will be necessary to examine again later, is whether the measures were necessary in the comprehensive form chosen, so far as the area and species of fish affected were concerned, or whether it must be said of them that they went further than was necessary. |
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.
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5. |
Finally, it is necessary to summarize by saying that the Commission's application is well founded and that, accordingly, it is necessary to declare that Ireland has failed to fulfil its obligations under Community law by adopting both orders of 16 February 1977 and applying them as from 10 April 1977. If this is the result of the case Ireland must, in accordance with the request made in the application, be ordered in addition to bear the costs of the proceedings. |
( 1 ) Translated from the German.