C-207/86

Mr President, terial order of 12 June 1981 which, with a · Members of the Court, view to maximizing the use of resources.by adapting the number of vessels to existing fishery resources, provides for the possibility of cumulating in one operational vessel the 1. By an application lodged in the Court fishing rights of other vessels which Registry on 4 August 1986 the Asociación belonged to the same shipowner, principally Profesional de Empresarios de Pesca in the event, under prescribed conditions, Comunitarios (hereinafter referred to as of the sale, breaking-up or export of those 'Apesco') is seeking the annulment of the vessels. decision by which the Commission approved the list of vessels flying the Spanish flag authorized to fish in the waters of the other 5. The applicant claims, in substance, that Member States, except Portugal, during the by approving the draft lists drawn up by the month of July 1986. Spanish authorities on the basis of rules laid down in the ministerial order, the Commission is in reality applying internal 2. The fishermen in the Apesco group Spanish rules, thus infringing the principle consider that they have been the victims of that the Community has exclusive systematic discrimination in relation to their competence in the area, and is therefore competitors whose vessels appear much responsible for the discrimination resulting more frequently on the monthly lists from those rules. approved by the Commission. 6. Supported by Ceepesca and the Spanish Government, which is also an intervener in 3. The list for July 1986, in particular, the present proceedings, the Commission allocated an average of 12.58 days' fishing emphasizes first and foremost that because to Apesco vessels, whereas those belonging of the way tasks in the area are allocated to their main competitor, the Asociación de between the Spanish authorities and itself, it Armadores de Buques de Pesca con has no power to draw up or amend the Derechos de Acceso a las Pesquerías de la draft lists of Spanish fishermen authorized CEE (hereinafter referred to as 'Ceepesca'), to fish in the waters of the former intervening with three other companies in Community of Ten and cannot therefore be the present proceedings in support of the held responsible for alleged discrimination Commission, obtained an average of 19.67 committed by the Spanish authorities when days' fishing. selecting the vessels appearing on the draft projects submitted by them to the Commission.

(i) the role of the Commission and the scope of its powers in the adoption of 13. In my opinion, however, the the periodical lists; Commission's decision of approval falls into the category of measures intended or liable to produce legal effects with regard to third (ii) whether or not those lists are discrimi- parties that are capable of forming the natory. subject-matter of such an action if the other conditions laid down in Article 173 are satisfied. 9. The second question arises however only in the alternative, that is to say only if it is 14. In fact the various provisions leave very concluded that before approving the draft little room for doubt in that respect. Article lists the Commission ought to examine their 163 (1) and (2) of the Act of Accession content as regards compliance with the provide that the Spanish authorities are to principle of non-discrimination. submit drafts of the periodical lists to the Commission which, after checking them is to approve them and forward them to the 10. Before I begin to examine those Spanish authorities and to the supervisory questions of substance, a few remarks authorities of the other Member States concerning the admissibility of the action concerned. are called for, since the Commission and Ceepesca expressed certain doubts in that respect, albeit without formally raising an 15. Similarly, Commission Regulation objection of inadmissibility. (EEC) N o 3531/85 of 12 December 1985, · adopted pursuant to the second paragraph of Article 163 (3), provides in Article 3 (1) and (5) that the Spanish authorities are to A — Admissibility communicate proposals for the periodic lists to the Commission which, after examining them, is to draw up the periodic lists and 11. (a) The main object of Apesco's action forward them to the authorities concerned. is the annulment of the decision by which the Commission approved the list of Spanish 1 — Commission Regulation (EEC) N o 3531/85 of 12 vessels authorized to fish in Community December 1985 laying down certain technical and control measures relating to the fishing activities of vessels flying waters during July 1986. That decision was the flag of Spain in the waters of the other Member States, transmitted to the Spanish authorities who except Portugal (Official Journal 1985, L 336, p. 20).

19. That being the case, it remains for me 23. As the Commission has rightly to state my views regarding the other obser- emphasized, the Court has no power to vations concerning the admissibility of the make such orders in proceedings under action put forward by the Commission and Article 173 for review of the legality of a the interveners. decision.3

20. (b) Ceepesca maintains that since the action was brought at a time when the list for the month of July was no longer valid 24. (d) The Commission states further that but had been replaced by the list for the only the operators of vessels appearing on month of August, it is devoid of purpose t.»e contested list are directly and indi- and out of time. vidually concerned by the contested decision under the second paragraph of Article 173 of the Treaty, so that Apesco's action is 21. Irrespective of the question whether an admissible only in so far as it is brought in intervener may put forward arguments the name of those operators. In my opinion against the admissibility of an action that that contention is unfounded. were not raised by the party whose conclusions it is supporting, it suffices to 2 — In this connection see the judgment of 24 June 1986 in state that the action was brought within the Case 53/85 AKZO v Commission [1986] ECR 1965, paragraph 21; see also the judgment of 6 March 1979 in period prescribed in Article 173 (3) of the Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraph 32. Treaty, that is to say within two months of 3 — For the most recent case see the judgment of 17 November notification of the contested decision to the 1987 in Joined Cases 142 and 156/84 British American applicant. The applicant retains an interest Tobacco and Reynolds Industries'/ Commission [1987] ECR 4487, paragraph 13.

30. It must, however, be recognired that 26. It seems to me, however, that an Apesco is not formally asking the Court to applicant must have the possibility of chal- hold that the Spanish ministerial order is lenging the non-entry of a vessel on a list incompatible with Community law, but is for a given month and of then trying to reproaching the Commission for having demonstrate with the help of a whole series approved a draft periodical list that was not of lists concerning the previous months on established on the basis of Community law which the vessel also did not appear that the alone and infringes the principle of vessel has been discriminated against. non-discrimination. That, therefore, constitutes the basic problem raised by this case, namely the scope of the control which the Commission may carry out in 27. At all events, I consider that it can be connection with the draft periodical lists. It inferred from the stand taken by Apesco is that problem which I shall now examine. that in the present case that association has made itself the spokesman only for those of its members whose vessels appear on the list B — The scope of the control to be carried for the month of July 1986. I therefore out by the Commission consider that the action is admissible.

31. Pursuant to Article 163 (1) of the Act of Accession, it is for the Spanish authorities 28. (e) The Commission makes a further to submit to the Commission draft peri- observation that Apesco is not entitled, odical lists. under the procedure of Article 173, to raise the issue of whether national provisions comply with Community law. In the same vein, Ceepesca complains that Apesco is in 32. Under Article 163 (2) 'After having reality challenging provisions of internal been checked, these lists shall be approved Spanish law and that it is therefore not the by the Commission which shall forward

39. Beyond that body of more or less (iv) the distribution of the vessels within the technical rules neither the Act of Accession limits indicated over the different auth- nor the implementing regulations provide orized zones, given that five may be for any other criteria to be taken into allocated only for fishing for species account when the lists are drawn up. In other than demersal. particular, I am unable to find any provision laying down that each individual vessel should be authorized to fish during any 35. O n the other hand, the first given month for the same number of days as subparagraph of Article 3 (2) of Regulation any other vessel appearing on the list. A N o 3531/85, cited above, requires that the fortiori there is nothing in the provisions to periodical lists specify on a day-to-day basis suggest that vessels affiliated to a given the vessels authorized to fish and that each organization should, on average, be auth- vessel appearing on such a list must be orized to fish for the same number of days allocated six consecutive days' fishing. as vessels affiliated to another organization of Spanish fishermen. 36. Pursuant to Anicie 3 (4) of Regulation N o 3531/85, the draft periodical lists are to 4 — Council Regulation (EEC) N o 3781/85 of 31 December 1985 laying down the measures to be taken in respect of provide precise information on each vessel operators who do not comply with certain provisions relating to fishing contained in the Act of Accession of on those various points, the registration Spain and Portugal (Official Journal 1985, L 363, p. 26).

44. I would refer, for instance, to Article 20 48. Finally, as emphasized in my Opinion of Regulation (EEC) N o 171/83 of 25 of 22 September 1987 in Case 223/86 Pesca January 1983 laying down certain technical Valentia v The Minister for Fiskenes and measures for the conservation of fishery Forestry Ireland [1988] ECR 83, at resources (Official Journal 1983, L 24, paragraph 25, it follows from a series of p. 14) which authorizes Member States to provisions, in particular Council Regulation adopt national technical measures going N o 101/76 of 19 January 1976 laying down beyond the minimum requirements laid a common structural policy for the fishing down by Community rules. industry (Official Journal 1976, L 20, p. 19) that 'the Member States have 45. Similarly, under Article 5 (2) of Council retained the power to adopt, in conformity Regulation No 170/83 of 25 January 1983 with the criteria laid down by the Community, all measures necessary for the 5 — See, for example, the judgment of 25 November 1986 in rational restructuring of their fishing fleets.' Case 148/85 Direction generale del impôts v Fore» [1986] ECR 3449, paragraph 14. There can be no doubt that the purpose of

OPINION OF M R MISCHO — CASE 207/86

51. In that respect I must, however, make 54. Moreover, it follows expressly from the clear that Article 2 of Council Regulation judgment of the Court of 25 November N o 101/76 cited above, which provides that 1986 in Joined Cases 201 and 202/85 'Member States shall ensure in particular Klensch and Others v Secrétaire d'État à equal conditions of access to and use of the l'Agriculture et à la Viticulture [1986] ECR fishing grounds situated in the waters 3447, that the provision is also binding on referred to in the preceding subparagraph the Member States when they take action (that ¡s to say, liic waters coming under for the implementation of the common agri- their sovereignty) for all fishing vessels cultural policy (paragraph 8). flying the flag of a Member State and registered in Community territory*, is not applicable in the case with which we are concerned. As the Commission has rightly 55. Hence the Court inferred that when, in pointed out, that article obliges each such a case, Community rules leave Member Member State to treat fishermen from other States to choose between various methods Member States as being on an equal footing of application they

7 — See, for instance, the judgments of 19 October 1977 in 6 — See, with regard to such enabling provisions in the context Joined Cases 117/76 and 16/77 Ruckdescheli Hauptzollamt of the operation of a common organization of the market, Hamburg-St Annen [1977] ECR 1753, paragraph 7, and the judgment of 16 January 1979 in Case 151/78 SMer- Joined Cases 124/76 and 20/77 Moulins et Huileries Pont- /abriken Nykibing Limitent v Ministry o/Agriculture [19791 à-Mousson v Office national interprojessionnel des céréales ECR 1, paragraph 22. [1977] ECR 1795, paragraph 16.

before examining whether a differentiation made, for the purposes of German tax law, 61. Nevertheless I consider that the system between two categories of breeders, in a of periodical lists as conceived in the Act of piece of German legislation, was discrimi- Accession itself is such that examination of natory under that provision. the draft lists directly in the light of the general principle of equality is impossible.

57. There is therefore no doubt at all but that when drawing up the draft periodical 62. On the one hand, compliance with the lists as they are entrusted to do under the principle of equality could not be assessed Act of Accession the Spanish authorities, in exclusively by reference to a single list for a addition to complying with the conditions given month, in view of the fact that all 300 expressly laid down, must comply with the vessels on the basic list could not appear on rule of non-discrimination resulting from it. The Commission would also have to take Article 40 (3) of the Treaty and as inter- into account the frequency with which the preted by the Court. different vessels appeared on the previous lists (and the possibility of their appearing on future lists). 58. The question still remains whether, before adopting the periodical list for any 63. On the other hand the principle of given month, the Commission must examine equality precludes identical situations being its content directly in the light of the treated differently or situations which are general principle of equality. different being treated in the same way. 8

66. T h e Commission has no opportunity of knowing of all the other factors which (c) 57 in ICES division VIII a, b, d.' might influence the Spanish authorities in their selection of the vessels entered on a periodical list and all the particular reasons 70. It must not, however, be thought to which might lead to some being excluded suffice if the Spanish authorities divide into for a specific period. It may happen, for two lists of 150 vessels the 300 vessels instance, that some vessels are undergoing appearing on the basic list and submit one repairs or are busy fishing in fishing zones of those two lists alternately to the other than those of the Member States of Commission. The rules are in reality much the Community of Ten. more complex. Thus the periodical list for the month of July 1986 which is the subject of these proceedings comprises the names of 294 vessels, if I have counted accurately. That is explained by the fact that the 150 67. In that connection the Commission is iracralp •»'•'^W •·*»£n — . n , J XVIUAICU *~ IU — 111 A — I _1 _ ¿"LILICIC i r n 1^0 /Ί\ \ ) 3iľ right to emphasize that 'standard vessels', that is to say vessels having a brake horsepower equal to 700 (bhp), the conversion rate for which is 1. A conversion rate under 1 is applied to vessels having an engine power of less than 700 hp 'For the Commission to be in a position to and a conversion rate over 1 is applied to select the vessels entered on the periodical vessels having an engine power of more list there would have to be a system for than 800 hp. On the other hand a single enabling fishermen to make themselves vessel may be authorized to fish, during .the known directly and in detail to the same month, for a few days in Zone VI and Commission's departments, and no such another few days in Zone VIII, for example, system has been established' (page 19 of the so that its name appears twice in the peri­ defence). odical list.

77. That leaves untouched the question whether that periodical list (and the other 73. The draft list did not refer either to the periodical lists) nevertheless constitutes association of fishermen to which the discrimination between Spanish fishermen owners of the vessels were affiliated because owing to the application of the 1981 minis- that is not laid down in the applicable texts. terial order. Finally, it was not possible to recognize the vessels affiliated to Apesco by the number of days that they were authorized to fish. It 78. As guardian of the Treaties the can be seen in fact from the tables contained Commission is bound to examine that order, in Annex 3 to the application that in July in particular in the light of the principle of 1986 certain vessels belonging to that asso- equality, and if it should come to the ciation were authorized to fish for a greater conclusion that some of its contents are number of days than certain vessels incompatible with Community law it must affiliated to Ceepesca, even though, on initiate the procedure provided for in Article average, Ceepesca vessels were treated more 169 of the Treaty with regard to the favourably. (Minimum number of fishing Kingdom of Spain and if necessary bring days for a Ceepesca vessel: 10; maximum proceedings before the Court. for an Apesco vessel: 31 days).

79. Supposing the Commission were actually to draw that conclusion, should it 74. It is therefore impossible to see how the thenceforth refuse to approve the draft peri- Commission, confronted with a list of 294 odical lists?

80. It seems to me that that would not be 83. Moreover, a simple refusal by the possible because, in contrast to the ECSC Commission to approve the lists would Treaty under which, pursuant to Article 88, either prevent the vessels in question from it is for the High Authority to record, in going to sea, which is unthinkable, or would reasoned decisions, that Member States lead to their fishing unlawfully. It therefore have failed to fulfil their obligations, under seems to me that if that were the case the the EEC Treaty such a finding falls within most the Commission could do would be to the jurisdiction of the Court of Justice declare that it approved the draft projects (except in the special case of Article 93 (2)). only 'subject to reservations', thereby giving grounds to the owners of the disadvantaged vessels for claims to compensation were the Court, in an action for failure to fulfil an obligation, to hold that the order in question did indeed infringe Community law. 81. Until such time as the Court has delivered a judgment, the incompatibility of the order or certain of its provisions with Community law is not established. 84. 'In parallel there still remains the possi- bility that a Spanish court, if necessary after referring questions to the Court on the basis of Article 177, might declare certain provisions of the ministerial order of 1981 contrary to Community law. In that case the 82. If the Commission were allowed to Spanish authorities would immediately have refuse to approve a draft periodical list to cease producing draft lists that applied submitted by the Spanish authorities those provisions. because, in the Commission's opinion, it had been established on the basis of national rules incompatible with Community law, that would amount to recognizing that that 85. In any event the. problem whether the institution had power to make a finding by 1981 ministerial order is compatible with indirect means which it could not make Community law is not at issue in the present directly. It should be recalled that in the proceedings and has been touched upon Community legal order the power of setting during the procedure only indirectly and by aside a rule of national law which conflicts only some of the parties. In the circum- with Community law is for the national stances there is no need for me to define my courts aione. position in that regard.