Opinion of Mr Advocate-General Reischl

Mr President,

Members of the Court,

As regards the subject-matter of the reference for a preliminary ruling on which I am now giving my views, let me refer to my opinion in Case 61/77, which concerned the same problem.

In pursuance of his powers under Article 35 of the Fisheries (Amendment) Act 1962 the Irish Minister for Fisheries made two orders on 16 February 1977 which took effect on 10 April 1977. Under the terms of those orders permission to fish in an area of the Irish waters situated within certain specified degrees of latitude and longitude was granted only to boats which did not exceed a certain length and engine power.

At the end of April 1977 ten Netherlands boats whose dimensions exceeded those permitted under the Irish orders failed to comply with the terms of that provision when they fished at a distance of between 25 and 28 miles from the Irish coast. One of those boats was boarded, placed under arrest and brought to Cork Harbour. The other 9 boats also proceeded to Cork.

On 2 May 1977 the Masters of the aforementioned boats were prosecuted in Cork under the aforementioned Fisheries (Amendment) Act and the Irish Fisheries Consolidation Act 1959, under which foreign boats are forbidden to fish in exclusively Irish waters, that is, since 1964, within the 12-mile zone and since December 1976, after the fishery limits had been extended by a government order, within the 200-mile zone.

In their defence the defendants alleged that the two Irish orders of 16 February 1977 referred to above are incompatible with Community law. They maintain that by virtue of Articles 100 and 101 of the Act of Accession Ireland only has sovereignty within the 12-mile limit. In accordance with the Act of Accession and Council Regulation No 101/76 (OJ L 20 of 28. 1. 1976, p. 19) conservation measures outside that area can only be taken by the Council of Ministers. Furthermore, the aforementioned measures resulted in differences of treatment between the fishing fleets of the various Member States, which is contrary to Article 2 of Regulation No 101/76.

The Prosecutor is not willing to accept that. He considers that it cannot be inferred from either the Act of Accession and the measures relating thereto or from Regulation No 101/76 that Ireland has not been empowered to adopt the contested measures. Furthermore, there can be no question of discrimination; in any event, certain of the differences which may be noted in the effects on the fishing fleets of the Member States are justified.

However, in the light of the arguments based on Community law put forward by the defendants the judge hearing the case nevertheless decided to suspend the proceedings and by order of 7 July 1977 he referred the following questions to the Court for a preliminary ruling:

In the light of what has emerged from considerations of the action brought against Ireland in accordance with Article 169 of the EEC Treaty as a result of the adoption of the aforementioned measures — in which as you know I also considered in detail arguments put forward in the present proceedings — my opinion on the present reference for a preliminary ruling can be quite short. For the deuils of the arguments let me refer in particular to my opinion in Case 61/77.

1 Translated from the German.