Judgment_paragraph 1. · Regina v Kent Kirk (63/83)

1.The Commission explains that by its Decision of 5 January 1983 (see above p. 2694) it “provisionally” authorized several national measures including the Sea Fish Order 1982 for the period up to 26 January 1983 whilst reserving its position on the substance of the measures notified. The provisional authorization was based on the following two considerations:— the impossibility in the short time available of deciding whether the measures were “well founded” or “coordinated”;— the risk for public order in the absence of any provisions, taking into account the United Kingdom and Irish measures which restricted access to their own coastal waters and of the measures notified by a Member State which restricted its vessels' access to the coastal waters of another Member State.The Commission concedes that the legal basis for such an authorization is fragile. It derives from the Commission's supervisory duties under the EEC Treaty, particularly Article 155, and under Annex VI to the Hague Resolution of 3 November 1976, in conjunction with the general principles of law relating to the exercise of emergency powers by the executive and, in particular, the principle of “continuity”. That principle requires public authorities to ensure that the services for which they are responsible function properly and continuously. Where there are exceptional circumstances, interpreted strictly, the concept of continuity recognized in the case-law of several Member States has also been recognized, to a certain extent in the case-law of the Court of Justice, in particular in connection with Article 76 of the Euratom Treaty, in respect, of which the Court refused to adopt an interpretation which would have involved a “break in continuity” (judgment of the Court in Case 7/71 Commission w France [1974] ECR 1003). The principle of continuity is also implicit in the Court's conclusion that despite the “total and definitive” transfer to the Community of powers relating to the conservation of fishery resources, Member States may still amend existing conservation measures in case of need and where the Community has failed to act (judgments of the Court in Case 804/79, cited above, and Case 124/80 Van Dam [1981] ECR 1447).Article 155 of the EEC Treaty, and in particular the first indent thereof, empowers the Commission to act in order to prevent undue disruption of the common fisheries policy as a result of an interruption in the system. That interpretation of Article 155 is supported by the two judgments of the Court in Case 804/79 and Case 124/80 (cited above).However, the Commission notes that the Court has not yet given a clear decision on the validity of the exercise of such powers by the Commission. Nor will it be obliged to do so in the present case if it accepts the Commission's primary contention that the gap was filled retroactively by the adoption of Council Regulation No 170/83.