61977O0061(01)

IN CASE 61/77 R

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOHN TEMPLE LANG , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

SUPPORTED BY KINGDOM OF THE NETHERLANDS , REPRESENTED BY M . J . KUIPER , PRINCIPAL ADMINISTRATOR IN THE LEGAL ADVISERS ' DEPARTMENT OF THE MINISTRY FOR AGRICULTURE AND FISHERIES , ACTING AS AGENT , 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 . AND N . P . FENNELLY , BARRISTER-AT-LAW , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE IRISH EMBASSY , 28 , ROUTE D ' ARLON ,

DEFENDANT ,

APPLICATION FOR THE SUSPENSION OF MEASURES TAKEN BY THE GOVERNMENT OF IRELAND IN THE SEA FISHERIES SECTOR ,

1 HAVING REGARD TO THE ORDERS OF THE COURT OF 22 MAY AND 21 JUNE 1977 ,

2 HAVING REGARD TO THE SECOND REPORT FOR THE HEARING ,

HAVING REGARD TO THE OPINION OF THE ADVOCATE GENERAL ,

3 IN ITS ORDER OF 22 MAY 1977 , THE COURT CONSIDERED THAT ALTHOUGH PROVISIONAL SUSPENSION OF THE MEASURES CRITICIZED BY THE COMMISSION ' MAY APPEAR JUSTIFIED IN PRINCIPLE , IT IS , HOWEVER , APPROPRIATE ALSO TO TAKE INTO ACCOUNT THE CONSEQUENCES , FOR THE CONSERVATION OF MARITIME RESOURCES , OF THE SIMPLE ABOLITION OF A MEASURE WHOSE EFFICACY AND APPROPRIATENESS CAN ONLY BE DEFINITIVELY ASSESSED IN THE CONTEXT OF THE PROCEEDINGS ON THE SUBSTANCE OF THE CASE . '

4 IT THEREFORE DEFERRED ITS DECISION ON THE APPLICATION LODGED BY THE COMMISSION SO AS ' TO GIVE THE PARTIES AN OPPORTUNITY TO AGREE WITHIN A SHORT SPACE OF TIME UPON AN ALTERNATIVE SOLUTION WHICH MIGHT BE SUBSTITUTED FOR THE MEASURES FORMING THE SUBJECT-MATTER OF THE PROCEEDINGS . '

5 THE TIME-LIMITS FIXED FOR THE SUBMISSION BY THE PARTIES OF A REPORT THEREON AND THE DATE FIXED FOR THE RE-OPENING OF THE ORAL PROCEDURE HAVE BEEN REPEATEDLY EXTENDED AT THE REQUEST OF THE PARTIES , ON THE LAST OCCASION TO 9 AND 11 JULY 1977 RESPECTIVELY .

6 THE DOCUMENTS SUBMITTED AND THE INFORMATION SUPPLIED AT THE HEARING SHOW THAT THE COMMISSION HAS IN THE MEANTIME BEEN IN CONTACT , FIRST WITH IRELAND , AND SECONDLY WITH THE OTHER MEMBER STATES WHICH HAVE INTERESTS IN THE FISHING ZONE AFFECTED BY THE IRISH MEASURES , WITH A VIEW TO THE ELABORATION OF ' FISHING PLANS ' DRAWN UP ON THE BASIS OF THE PROPOSALS SUBMITTED BY THE COMMISSION TO THE COUNCIL IN MARCH 1977 , AS LAST AMENDED .

7 THE FISHING PLANS SUBMITTED IN THESE CIRCUMSTANCES BY THOSE MEMBER STATES , THAT IS , THE KINGDOM OF BELGIUM , THE FEDERAL REPUBLIC OF GERMANY , THE FRENCH REPUBLIC , THE KINGDOM OF THE NETHERLANDS , THE UNITED KINGDOM AND IRELAND ITSELF ARE CONSIDERED BY THE COMMISSION TO BE ' REASONABLY SATISFACTORY ' CONSERVATION MEASURES WHICH ARE CAPABLE OF BEING APPLIED WITHIN A RELATIVELY SHORT TIME .

8 THE IRISH AUTHORITIES ARE HOWEVER STILL RESERVING THEIR POSITION UNTIL THEY OBTAIN CERTAIN ADDITIONAL INFORMATION AND KNOW THE FULL DETAILS OF ALL THE FISHING PLANS IN QUESTION .

9 IN HIS LAST WRITTEN OBSERVATIONS LODGED ON 9 JULY 1977 , AND IN HIS STATEMENTS AT THE HEARING , THE AGENT FOR IRELAND DID NOT EXPLAIN THE NEED FOR THIS ADDITIONAL INFORMATION AND MERELY REQUESTED A ' SUBSTANTIAL ' POSTPONEMENT OF THE DECISION OF THE COURT ON THE INTERIM MEASURES SOUGHT BY THE COMMISSION UNTIL THE NEW IRISH GOVERNMENT , WHICH TOOK OFFICE ON 5 JULY 1977 , HAS HAD AN OPPORTUNITY TO STUDY THE QUESTION AT ISSUE .

10 AT THE HEARING THE COMMISSION , FOR ITS PART , CONFIRMED ITS ATTITUDE TO THE EFFECT THAT ALTHOUGH IT STILL REQUESTS PRIMARILY THE PROVISIONAL SUSPENSION OF THE MEASURES IN QUESTION , IT WOULD NEVERTHELESS STILL PREFER A SOLUTION CONSISTING IN THE REPLACEMENT OF THE MEASURES WHICH FORM THE SUBJECT-MATTER OF THE DISPUTE BY ' FISHING PLANS ' BASED ON THE PROPOSALS WHICH IT PUT FORWARD TO THE COUNCIL AND WHICH HAVE BEEN APPROVED BY THE PARTIES CONCERNED .

11 IN GIVING JUDGMENT ON AN APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE , THE COURT CANNOT GRANT THE MOST RECENT REQUEST MADE BY IRELAND , SINCE A FURTHER ADJOURNMENT OF ITS DECISION MIGHT WELL RENDER ANY INTERIM MEASURE INEFFECTIVE IN VIEW IN PARTICULAR OF THE ADVANCED STATE OF THE FISHING SEASON .

12 IT IS APPROPRIATE TO EXAMINE FIRST THE PRINCIPAL REQUEST OF THE COMMISSION WHICH IS FOR THE PROVISIONAL SUSPENSION OF THE IRISH MEASURES WHICH FORM THE SUBJECT-MATTER OF THE DISPUTE UNTIL JUDGMENT HAS BEEN GIVEN ON THE SUBSTANCE OF THE CASE .

13 FOR THE REASONS GIVEN IN THE ORDER OF 22 MAY 1977 , WHICH WERE DRAWN UP HAVING REGARD TO THE CRITERIA LAID DOWN IN ARTICLE 186 OF THE TREATY AND OF ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE , THE COURT CONSIDERS THAT THE CIRCUMSTANCES MAKE IT NECESSARY FOR THOSE MEASURES TO BE PROVISIONALLY SUSPENDED .

14 ON THE ONE HAND IN VIEW OF THE ADVANCED STATE OF THE FISHING SEASON ONLY AN INTERIM MEASURE HAVING IMMEDIATE EFFECT IS CAPABLE OF PREVENTING IRREPARABLE DAMAGE TO THE FISHERMEN OF THE OTHER MEMBER STATES .

15 ON THE OTHER HAND THE DISCUSSIONS WHICH HAVE TAKEN PLACE IN THE MEANTIME BETWEEN THE COMMISSION , THE IRISH GOVERNMENT AND THE GOVERNMENTS OF THE OTHER MEMBER STATES CONCERNED HAVE SHOWN THAT ALTERNATIVE CONSERVATION MEASURES , WHICH THE COMMISSION CONSIDERS ADEQUATE TO THE AIM PURSUED AND COMPATIBLE WITH THE REQUIREMENTS OF COMMUNITY LAW , ARE CAPABLE OF REPLACING AT SHORT NOTICE THE MEASURES INTRODUCED UNILATERALLY BY THE IRISH AUTHORITIES .

16 TAKING INTO ACCOUNT THE TIME WHICH HAS ELAPSED SINCE THE COMMISSION ' S APPLICATION WAS LODGED ON 13 MAY 1977 AND SINCE THE OPENING OF THE NEGOTIATIONS BETWEEN THE PARTIES AS A RESULT OF THE ORDER OF 22 MAY 1977 , IT IS POSSIBLE FOR THE IRISH MEASURES TO BE PROVISIONALLY SUSPENDED IN THE VERY NEAR FUTURE WITHOUT HOWEVER ENDANGERING THE CONSERVATION OF FISH STOCKS IN THE AREA IN QUESTION .

17 SINCE IT HAS EMERGED AT THE HEARING BEFORE THE COURT THAT IN THE PARTICULAR CIRCUMSTANCES THE DAMAGE CAUSED BY THE UNILATERAL INTRODUCTION OF THE IRISH MEASURES PRIMARILY AFFECTS THE INTERESTS OF THE MEMBER STATES , THE MEASURES IN QUESTION NEED BE SUSPENDED ONLY VIS-A-VIS THOSE STATES .

18 HAVING REGARD TO THE CONSIDERATIONS SET OUT ABOVE IT IS APPROPRIATE TO STATE THAT UNTIL JUDGMENT HAS BEEN GIVEN IN THE MAIN ACTION IRELAND MAY , WITH THE CONSENT OF THE COMMISSION , ADOPT IN THE SEA AREAS WITHIN ITS JURISDICTION ANY OTHER MEASURES INTENDED TO ENSURE THE PROTECTION OF FISH STOCKS WHICH ARE IN ACCORDANCE WITH THE PROVISIONS OF COMMUNITY LAW AND WITH THE OBJECTIVES OF THE COMMON FISHERIES POLICY .

ON THOSE GROUNDS

THE COURT ,

AS AN INTERLOCUTORY MEASURE , HEREBY ORDERS AS FOLLOWS :

1 . IRELAND SHALL SUSPEND , BY 0.00 HOURS GMT ON 18 JULY 1977 AT THE LATEST AND UNTIL JUDGMENT HAS BEEN GIVEN IN THE MAIN ACTION , THE APPLICATION , TO FISHING BOATS REGISTERED IN ANY OF THE MEMBER STATES , OF THE ORDERS OF THE MINISTER FOR FISHERIES ENTITLED THE SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ORDER , 1977 AND THE SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ( NO 2 ) ORDER 1977 .

2 . UNTIL JUDGMENT HAS BEEN GIVEN IN THE MAIN ACTION IRELAND MAY , WITH THE CONSENT OF THE COMMISSION , ADOPT IN THE SEA AREAS WITHIN ITS JURISDICTION ANY OTHER MEASURES INTENDED TO ENSURE THE PROTECTION OF FISH STOCKS WHICH ARE IN ACCORDANCE WITH THE PROVISIONS OF COMMUNITY LAW AND WITH THE OBJECTIVES OF THE COMMON FISHERIES POLICY .

3 . COSTS ARE RESERVED .