C-55/86
ECLI:EU:C:1987:465
- Súd
- Súdny dvor Európskej únie
- IČS
- 61986CC0055
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR MISCHO —CASE 55/86
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 28 October 1987 *
Mr President, paragraph of Article 173 a natural or legal Members of the Court, person has no standing to bring proceedings for its annulment. In support of its argument the Council stresses in particular 1. The Council has raised an objection of the fact that Regulation No 3781/85 applies inadmissibility under Article 91 (1) of the not simply to the situation of Spanish Rules of Procedure of the Court of Justice fishermen but also, in an identical manner, with respect to an action commenced on 26 to Portuguese fishermen and fishermen February 1986 by the Asociacion Provincial from Member States of the Community of de Armadores de Buques de Pesca de Gran Ten. Sol de Pontevedra (hereinafter referred to as Arposol) for the annulment of Council Regulation (EEC) No 3781/85 of 31 5. The applicant replies by stressing the December 1985 laying down the measures limited and specific number of vessels to be taken in respect of operators who do capable of being affected by the penalties not comply with certain provisions relating provided: about 1 268 out of the 76 818 to fishing contained in the Act of Accession vessels making up the fishing fleet of the 12 of Spain and Portugal (Official Journal Member States of the Community. In 1985, L 363, p. 26). particular, with regard to non-specialized fishing, only 300 Spanish vessels, specified by name in the basic list provided for by 2. Article 1 of that regulation states that it Article 158 (1) of the Act of Accession and 'lays down the measures intended to ensure set out in Annex IX to that Act, may be compliance with the rules on access to affected by the regulation in issue since they waters and resources contained in Articles are the only ones which are capable of 163, 164, 165, 349, 351 and 352 of the Act being authorized to fish in the fishing zones of Accession by fishing vessels flying the in question. The 57 vessels represented by flag of a Member State or registered in a Arposol appear in that basic list. Member State'.
6. Before examining whether Regulation 3. Those measures and the rules with which No 3781/85 is of direct and individual they are intended to ensure compliance are concern to those vessels I should like to set out in a detailed manner in the Report make the following observations on this for the Hearing. point.
4. The Council, supported by the Commission, the intervener, considers that 7. In essence Arposol challenges the fact the contested regulation is a true regulation, that the vessels which it represents may be general in its scope and of a legislative penalized by not being entered on the peri- character, so that under the second odical lists of vessels authorized to fish at
* Translated from the French.
ARPOSOL ν COUNCIL
the same time during a given period. To 12. However, it is possible that the Court that end Arposol essentially alleges a breach may prefer to overlook that aspect and of the principle of equal treatment and analyse whether the action is admissible certain rules of criminal law (the right to a solely in relation to the act whose fair hearing and the principle non bis in annulment is formally requested. In that idem). respect, I should like to make the following remarks.
8. The real subject-matter of Arposol's action, therefore, is the very system of peri 13. Even supposing that Arposol can be odical lists and the possibility that a boat regarded as simply the spokesman for the which engages in fishing without appearing individual interests of each of its members on the list may thereafter not be entered on (those interests being identical for all of that list for a certain number of months. them) the association's action is admissible only if each of the members concerned is directly and individually affected by the regulation under challenge. 9. However, the essence of the scheme appears not in an 'Act of the Council' within the meaning of Article 173 of the Treaty but in the Act of Accession, which is 14. That is the question with which I should an international treaty and cannot be chal like to deal now. However, I shall refrain lenged before this Court. from repeating the Council's argument (with which I agree) to the effect that Regu lation No 3781/85 relates generally to fishing relations between Spain, Portugal 10. That means that if the vessels affiliated and the Member States of the Community to Arposol must be regarded as directly and of Ten and cannot therefore be of indi individually affected simply because they vidual concern to vessel-owners in whose appear in the basic list of 300 vessels, the name the action has been brought. For fact that they are singled out in that manner myself, I wish to concentrate on the flows from Article 158 of the Act of provisions relied on by Arposol, that is to Accession and not from the contested regu say the rules flowing directly from Article lation. 158 of the Act of Accession which govern the non-specialized fishing activities of Spanish vessels in waters falling under the sovereignty or within the jurisdiction of the Member States of the Community of Ten. 11. Furthermore, as regards the fishing acti vities of Spanish vessels in the waters of the Member States of the Community of Ten, the first subparagraph of Article 163 (3) of the Act of Accession provided for the possi 15. Since we are dealing with a situation bility of not authorizing a vessel to fish for extremely similar to that which gave rise to a certain period in order to ensure the Court's judgment of 16 March 1978 in compliance with the rules laid down by Case 123/77 Unione and Others ν Council other provision of that Act. Regulation No [1978] ECR 845, I shall base myself on the 3781/85 merely sets out detailed measures logical structure of that judgment, in for implementing that rule. particular as set out in paragraphs 8 to 20.
OPINION OF MR MISCHO —CASE 55/86
16. It must first be noted that it cannot be 20. It is thus apparent that the penalty of determined from an examination of the not entering a vessel on the periodical lists contested regulation itself whether or not may only be imposed by the authorities of one of the vessels covered by Arposol will the flag Member State after a procedure be affected by the penalties provided for. which necessitates the intervention of several authorities of other Member States and that it does not become final until the Commission has approved the lists. 17. The system established by that regu- lation can only affect the interests of the owners, charterers or operators of the 21. Since several other conditions must be vessels in question if the penalty of fulfilled before the application of the non-inclusion in the drafts of the periodical contested regulation can cause harm to the lists is in fact imposed on them. vessels represented by Arposol, those vessels cannot be regarded as being directly affected by the regulation.
18. Article 2 of Regulation No 3781/85 provides that before that can happen: 22. Furthermore, as the President of the Court noted in his order of 22 April 1986 on the application for interim measures, in (i) the vessel concerned must not have the event of exclusion from the periodical been entered in the periodical list list during a given month;
(ii) it must nevertheless have engaged in 'it is possible at both national and fishing; Community level to challenge the periodical list' (paragraph 19). (iii) it must have been caught in the act; 23. In proceedings for that purpose a (iv) the competent authorities of the vessel-owner will challenge the legality of Member State in whose waters the Regulation No 3781/85 either before the infringement was committed must have Court of Justice or before a national court; recorded the infringement and notified the latter will then have the opportunity of the Commission and the flag Member referring a question to the Court of Justice State of any penal, administrative or for a preliminary ruling in that respect. If other measures taken and any Court necessary the operator can also seek redress decision relating to such infringement. ' for the harm caused by any illegality.
24. Finally, the Court has consistently held 19. Finally, under Article 163 (2) of the Act that 'the possibility of determining more or of Accession drafts of periodical lists must less precisely the number or even the be submitted to the Commission for its identity of the persons to whom a measure approval. applies by no means implies that it must be regarded as being of individual concern to I — The Member States are obliged to take such action under them'. 2 Article 12 of Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States (Official Journal 2 — See the Unione judgment, supra, at paragraph 16; see also 1982. L 220, p. 1) as amended by Council Regulation the judgment of 24 February 1987 in Case 26/86 Deutz (EEC) No 3725/85 of 20 December 1985 (Officiallournal und Geldennann v Council [1987] ECR 941, at paragraph 1985, L 361, p. 42). 17.
ARPOSOL ν COUNCIL
25. In this case the fact that all the vessels Accession, and if it were subsequently to represented by Arposol are potentially feature on a periodical list, it would be capable of being dropped from the peri subject to the system established by the odical lists pursuant to Articles 3 and 4 of contested regulation on the same basis as Regulation No 3781/85 does not mean that vessels which had always been on the list. that regulation must be regarded as being of individual concern to them in the same way 28. It cannot therefore be said that the legal as a decision is to the person to whom it is position of the vessels represented by addressed. Arposol is affected
26. First of all, the regulation only has 'because of a factual situation which effects on individuals when it is applied by differentiates them from all other persons the Spanish authorities, that is to say when and distinguishes them individually in the they draw up drafts of periodical lists to be same way as a person to which it is submitted to the Commission which exclude addressed'. 3 the offending vessels. 29. Consequently Regulation No 3781/85 27. Secondly, the basic list has not been is not of individual concern to them; that is drawn up once and for all. If in the future so even if one only takes into consideration another vessel were to be included in the (as I have done) the situation of the Spanish basic list as a replacement for a vessel no fishermen engaged in non-specialized longer in use and removed from the list, as fishing in the waters of the Member States provided for by Article 159 (2) of the Act of of the Community of Ten.
30. I would therefore propose that the C o u r t should dismiss the action b r o u g h t by Arposol as inadmissible and o r d e r the applicant to pay the costs of the case, including the costs of the application for interim measures.
3 — Sec in particular the judemeni of 2-1 Februar)' 1987 in Case 26/86 Deutz umi Geldermann ν Colludi [1987], riled above, al paragraph 9.