C-290/87

(ii) order the Kingdom of the Netherlands to pay the costs. 3. The applicant takes the view that quotas were exceeded because the prohibition of fishing provided for in Article 10(2) of Regulation No 2057/82 1 was imposed too late and on account of a failure to fulfil the 5. The defendant contends that the Court obligations incumbent on Member States in should: the management of quotas and the super­ vision of fishing activities (Article 5(2) of Regulation No 170/83, 2Anieles 1 and 6 to (i) dismiss the application as inadmissible; * Original language: German. 1 — Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States (OJ 1982, L 220, p 1) 2 — Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and (ii) in so far as the application is management of fishery resources (OJ 1983, L 24, p 1) admissible, dismiss it as unfounded;

OPINION OF MR LENZ — CASE 290/87

9. The defendant's principal defence is the 12. Consequently, Article 5(2) of Regu­ procedural submission that the application is lation No 170/83 defines a specific obli­ inadmissible because it is insufficiently gation which, if not fulfilled, can lead to precise. Therefore the question to be defeat in the action to establish an examined is whether the application, if well infringement of the Treaty. founded, can form the basis for a judgment establishing the existence of an infringement of the Treaty. The formal claims circum­ scribe what the applicant is seeking to have 13. 2. The applicant also contends that established. Articles 1 and 6 to 10 of Regulation No 2057/82 establishing certain control measures for fishing activities by vessels of the Member States have been infringed. 10. Thus, the wording of the application in Article 1 requires each Member State, conjunction with the relevant regulations within ports situated in its territory and

COMMISSION v NETHERLANDS

14. An infringement of the Treaty in relation to Article 1 of Regulation No 18. The principle that an application must 2057/82 could consist, for example, in an be specific serves to define the subject- inadequate implementation of the required matter of the dispute and is control measures. In order to establish an intended — provided that the application is infringement it would then be necessary to well founded — to facilitate judgment. The specify in more detail which conservation requirement that an application should be and control measures were not adequately specific in order to be admissible is not to be observed and, where necessary, what steps subject to further conditions. However, the ought to have been taken. application made in the present action to establish an infringement of the Treaty meets the minimum procedural requirements as defined above. The submission that it is 15. Examples which come to mind are a inadmissible must therefore be rejected. failure to fulfil the obligations laid down in Article 6 to 10 of Regulation No 2057/82 such as verification of the declarations required of skippers under Article 6(1) (Article 6(2)), the duty to record landings (Article 9(1)) and notify them to the 19. Nevertheless, there are still a number of Commission within a time-limit (Article doubts to be cleared up regarding the 9(2)) and to prohibit catches in good time subject-matter of the dispute. Inasmuch as (Article 10). the application seeks a declaration that the defendant has infringed Articles 1 and 6 to 10 of Regulation No 2057/82, it also covers, from a purely formal point of view, 16. Even without making reference to any failure to fulfil the obligations to keep specific conservation and control measures, proper records flowing from Article 9 of it is still possible to establish that a Member Regulation No 2057/82. The same is true State has failed to fulfil its obligations, for for the notification to be made before the

24. Under the common fisheries policy, total allowable catches (TACs) are fixed and the Member States allocated quotas by 21. According to the rule that the reasoned stock or group of stocks. Occasionally, opinion in an action to establish an provisional TACs are adopted first of all infringement of the Treaty delimits the and the definitive TACs and the Member subject-matter of the dispute, even for States' quotas are established only later. subsequent proceedings, the obligation Whatever the procedure used, however, the arising under Article 9 of Regulation No catch limits laid down by regulation remain 2057/82 cannot now provide a basis for a binding. For the periods at issue in the declaration in the proceedings before the present case — namely the years 1983 to Court. 1985 — the TACs and the quotas allocated to the Member States were based on the following regulations: Regulations Nos 6 172/83, 3198/83, 43220/83 5and 3624/83 7 for 1983, Regulations Nos 320 / 84 and 3434/84 8 for 1984 and Regulations Nos 9 10 22. Moreover, it was repeatedly stated in 1/85 and 3720/85 for 1985. both the written and oral procedures that a separate action would be brought on the 3 — OJ 1983, L 24, p. 30. question of keeping records. Consequently, 4 — OJ 1983, L 25, p. 32.

disputes over the interpretation and 5 — OJ 1983, L 318, p. 20. 6 _ OJ 1983, L 365, p. 1. application of Article 9 of Regulation No 7 _ OJ 1984, L 37, p. 1. 2057/82 are not the subject-matter of these 8 — OJ 1984, L 318, p. 6. proceedings to establish an infringement of 9 — OJ 1985, L l,p. 1. the Treaty. 10 — OJ 1985, L 361, p. 1.

26. The applicant concedes that the exceeding of a quota cannot be regarded per se as a breach of the Treaty because it was the fishermen who exceeded the catch 30. Even if exceeded quotas do give rise to quotas and not the defendant. However, the the suspicion that a Member State has failed fact that it was allowed to happen is attribu­ to carry out adequate supervision, that is table to the defendant's failure to meet in not a sufficient basis for a legal presumption full its obligations under Community law. that conservation and control measures have Therefore, from the fact that quotas were not been observed. That is particularly so exceeded it is possible to infer that certain since a series of obligations are intended to obligations were not fulfilled. The ensure proper management of quotas. Even Community rules allegedly infringed are all if a Member State could be accused of mentioned and in the case of some of them negligence in its supervision of catches, it is it is explained how they were infringed. not evident from such a general charge which of the individual obligations were not fulfilled. One of the factors which may alone have created the situation complained 27. The individual submissions of, namely the irregularities in the recording of catches, is not part of the subject-matter of the proceedings.

(1) Article 5(2) of Regulation No 170/83

28. It is conceivable for there to be a breach 31. Since it is not evident how the of Article 5(2) of Regulation No 170/83 defendant has, in the applicant's view, whenever the national legislation laying infringed Article 5(2) of Regulation No down the detailed rules for the utilization of 170/83, the application for a declaration that Article 5(2) of Regulation No 170/83 II — In the oral procedure the defendant's representative has been infringed must be dismissed as admitted that in some instances in 1985 fishing was prohibited too late. unfounded.

32. It is claimed in only a very general way that there has been a failure to fulfil the (3) Article 1(2) in conjunction with Article obligation, under Article 1(2) of Regulation 6(2) of Regulation No 2057/82 No 2057/82, to take penal or administrative action against skippers who do not comply with the provisions in force concerning conservation and control measures. 34. The application for a declaration that Article 1(2) and Article 6(2) of Regulation No 2057/82 have been infringed must also be dismissed as unfounded, since the applicant has not even claimed that the defendant did not verify the skippers' declarations. The mere submission that the 33. The mere fact that a reference for a authorities are not absolutely bound by the preliminary ruling has been made to the information supplied by skippers, made in 12 Court (in Case 46/86 ) in criminal reply to the defendant's contention that the proceedings shows that the defendant has authorities must assume that the information adopted penal measures and has also they receive is correct until the contrary is punished infringements. The defendant was proven, cannot be regarded as concrete not contradicted when it claimed that evidence of a breach of obligations. approximately 3 000 similar criminal proceedings were stayed until the Court delivered its judgment in Case 46/86. Moreover, the Court is aware (from Case 13 2/88 ) that action is being taken with (4) Article 1(1) in conjunction with Article regard to infringements in the fisheries 9 and other provisions of Regulation sector in the Netherlands. If, therefore, the No 2057/82 defendant cannot be accused of failing to adopt any penal measures at all or of refusing to prosecute contraventions, a submission that there has been an infringement is properly proven only if 35. Consideration of the question of concrete facts are adduced. However, it is admissibility has already established that any not possible to deduce that Article 1(2) of failure on the part of the defendant to fulfil Regulation No 2057/82 has been infringed obligations under Article 1(1) in conjunction on the sole ground that quotas were with Article 9 of Regulation No 2057/82 exceeded. Even if breaches of quotas are was not part of the subject-matter of the prosecuted, the illegal catches are still dispute and cannot therefore be the subject- matter of the judgment. Since Articles 6, 7 12 — Judgment of 16 June 1987 in Case 46/86 Romkes v Officier and 8 of Regulation No 2057/82 do not lay van Justitie [1987] ECR2671,at p. 2681. 13 — Pending case — Juge d'instruction de Groningue. down any further obligations for Member

39. The applicant maintains that the 36. In his address to the Court in the oral defendant infringed the obligation under procedure, the applicant's representative Article 10(2) of Regulation No 2057/82 to stated that the late prohibition of fishing prohibit fishing in good time, which, in its was the main submission of the application. view, led to the breaches of quotas at issue. However, as the application has not been It bases its argument first of all on the formally restricted, despite the President's submission that Article 10(2) of Regulation suggestion, the Court must in its judgment No 2057/82 imposes an obligation with also rule on the alternative submissions. An regard to the result to be achieved, so that opinion on them therefore needed to be from the mere fact that quotas were given. exceeded it can be deduced that an obli­ gation was not fulfilled. Therefore, the alleged failure to fulfil an obligation need not be more specifically defined.

(5) Article 1(1) in conjunction with Article 10(2) of Regulation No 2057/82

40. That view cannot be accepted. The applicant itself concedes that it is not possible to succeed in an action to establish an infringement of the Treaty solely on the 37. The first sentence of Article 10(2) of ground that a quota has been exceeded Regulation No 2057/82 provides that each because it is not the Member State itself, or Member State is to fix the date on which rather its organs, which overfished but its the quota allocated to it is to be deemed to fishermen. The Member State's fault be exhausted. consists in inadequate control of fishing activities.

adopted 4to perfect the system. Therefore, 43. During the proceedings, the applicant if it is inappropriate to regard Article 10(2) admitted that it was possible for illegal of Regulation No 2057/82 as laying down catches to have increased the final volume an obligation with regard to the result to be of catches without the defendant being achieved, it is necessary to establish a open, as a result, to the accusation that it specific failure by the defendant to fulfil an incorrectly applied Article 1(2) of Regu obligation under that provision. The timing lation No 2057/82. That situation was, of a Member State's decision to close however, due to insufficient supervision and fishing is determined by the purpose of the insufficient prosecution of infringements. measure, namely the observance of the

15 'Each Member State shall determine the was not fulfilled. 'It is [the applicant's] date from which . . . catches . . . shall be responsibility to place before the Court the deemed to have exhausted the quota information needed to enable the Court to applicable to it.' The wording indicates establish that the obligation has not been 16 notional determination. Logically, the fulfilled . . . '. On the question of the period between notional and actual burden of proof, the applicant takes the exhaustion of the quotas is to be regarded view that the breach of quotas justifies a as room to manoeuvre enabling account to presumption that there has been a breach of be taken of the elements of uncertainty obligations. That view must be rejected for already mentioned. the same reasons as those militating against interpreting Article 10(2) of Regulation No 2057/82 as giving rise to an obligation to achieve a specific result. Since various legal obligations are intended to ensure that the quotas are adhered to and, secondly, illegal catches, even when they have been made the subject-matter of criminal proceedings, are also included in the total volume of catches,

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96 / 81 , the Court stated that when providing that both the timing of the decision to evidence that an obligation has not been prohibit fishing and the interval before fulfilled the Commission may not 'rely on publication were at least in part flawed and 16 any presumption'. therefore unlawful.

48. For example, in 1985 the quota for cod for Zones II a and IV was 28 380 tonnes. We are told that the prohibition was 45. The evidence annexed to the application imposed on 10 November on the basis of shows only the total volume of catches for 28 310 tonnes, but published only on 22 1983 and 1984 so that it is not possible to November and, as is evident from the publi­ ascertain whether the defendant prohibited cation itself, came into force on 23 catches in good time. November.

47. The figures which were submitted as 51. Those examples should suffice to show evidence for 1985 are a different matter. that in 1985 the defendant failed to exercise They enable it to be assessed whether the care for the purposes of Article 10(2) of prohibition of catches was imposed and Regulation No 2057/82. The defendant's published in good time. The table shows 17 — In other words, when 99 75% of the quota had been 16 — Judgment in Case 96/81, cited above, paragraph 6 exhausted

OPINION OF MR LENZ —CASE 290/87

representative admitted at the hearing that Costs in some cases the prohibition of fishing had been imposed too late. 53. Since the applicant has failed on almost all points because of the insufficiency of the 52. Accordingly, it may be concluded that, facts alleged and for lack of proof of the at least in 1985, the defendant failed to relevant facts, the applicant should be fulfil its obligations under Article 10(2) of ordered to pay the costs under Article 69(3) Regulation No 2057/82. of the Rules of Procedure.

C — Conclusion

54. I propose that the Court should rule as follows:

'(1) By failing to impose and publish in good time the prohibition of fishing for individual stocks or groups of stocks in 1985, the Kingdom of the Netherlands has infringed Article 10(2) of Regulation No 2057/82.