C-6/88

The contested regulation was adopted Pursuant to Article 10 of Regulation No pursuant to Article 10 of Council Regu­ 2241/87: lation No 2241/87. 2The latter regulation, which codifies the earlier Council regu­ lation, No 2057/82, 3 and the various amendments thereto, introduces a number of measures for the control of fishing acti­ 'In accordance with the procedure laid vities. In addition to inspection measures down in Article 14 [the management- (Title I, Articles 1 to 4), the regulation committee procedure], additional stocks or establishes (Title II, Articles 5 to 9) a system groups of stocks may be made subject to of measures to ensure the proper monitoring Articles 5 to 9'. of catches. In particular, the skippers of Community fishing vessels are required (Article 5) to keep a log-book indicating for each species subject to a TAC (total allowable catch) the date and location of On the basis of that provision, the each catch, by reference to the smallest Commission adopted the contested regu­ zone for which a TAC has been fixed and lation which brought within the scope of administered. Furthermore, at the time of Articles 5 to 9 of Regulation No 2241/87 landing catches at a Community port, a the fishing activities of Community declaration must be presented to the local fishermen in the waters of a number of authorities stating the quantities landed and developing countries with which the the location of catches by reference to the Community had entered into agreements. smallest zone for which a TAC has been fixed (Article 6). Substantially the same information must be supplied to the Member State whose flag the vessel is flying

The predominant feature of the latter agreements is the fact that they define the nature and extent of what is due from the EEC. The provisions concerning conser­ vation of resources and inspection measures are of less importance. Any limitation of In that connection the applicants also fishing possibilities, where provided for, is contest the lawfulness of the reference in based in the main on geographical the preamble to Regulation No 3151/87 to restrictions or limitation of licences (for Article 14 of Regulation No 2241/87. specific numbers of vessels or the tonnage However, let it be said straight away, that thereof) and not on the volume of catches. observation appears irrelevant. It is in fact In any event, they are specifically bilateral Article 10 of Regulation No 2241/87 which provisions. provides that the extension of control measures must be in accordance with Article 14 (which refers to the management- committee procedure). One of the alter­ natives must prevail: either the extension of the controls in question falls within the scope of Article 10 so that it is necessarily 3. That having been said — and the Report incumbent on the Commission to adopt the for the Hearing should be consulted for appropriate measures in accordance with the further details — it should be noted that in management- committee procedure, or else such an extension is not provided for by 4 — See D Charles-Le Bihan- 'La politique commune de la Article 10 and therefore the Commission pèche, la troisième generation de normes', Revue trimes- trielle de droit européen, 1988, No 3, p 481, and lacked powers to the extent to which it A Saccheium 'La politica della pesca nella CEE', exceeded the limits laid down in that article. Foro italiano, 1988, IV, p 452 5 — Sec J. M Sobrino Heredia. 'Acuerdos de pesca y This means, however, that the Commission's desarrollo referencia a la practica convencional pesquera power to adopt the contested regulation de la Comunidad Europea', La Ley, 1987, suppl. No 28, p. 1 must in any case be appraised with reference

In that context, the Commission observes, 'This regulation applies to the taking and Article 10 provides that specified control landing of biological resources occurring in measures (those envisaged in Articles 5 to 9) all maritime waters under the sovereignty or may be applied to 'additional stocks or jurisdiction of the Member States and situated groups of stocks'. As is apparent from the in one of the following regions . .. '. 8 11th recital in the preamble to the regu­ lation, 'other stocks' must be taken to mean 'stocks not subject to total allowable catches or quotas'. No territorial limitation is imposed in this case either. That provision is without prejudice to specific provisions on fishing operations in the Skagerrak and the Kattegat agreed between the delegations of the Community In the Commission's view, it follows that and Norway and Sweden. Article 10 definitely allows the control measures in question to be extended to 6 — OJ 1983, L 24, p. 14. 7 — OJ 1983, L 24, p. 1. stocks which, as in this case, are not subject 8 — Anicie 1 of the later regulation, No 3094/86 (OJ 1986, to TACs or quotas, in so far as they are L 228, p. 1) uses similar terms.

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Similarly, Article 2 of Regulation No fishing zone, the extension of which to the 172/83 9 which, again pursuant to the Atlantic and the North Sea came about in provisions of the basic regulation, No particular when the 200-mile principle was 170/83, fixes the TAC for 1982, the shares applied (see the first recital in the preamble thereof available to the Community and the to Regulation No 170/83). allocation of that share among the Member States, provides:

6. As far as the control measures laid down by Regulation No 2241/87 are concerned, It may be inferred from those provisions there is nothing in the wording of that regu­ that when the rules imposing a quantitative lation to support the conclusion that those limitation on stocks were introduced — controls relate to fishing outside their cornerstone in fact being the TACs 10 — OJ 1987, L 375, p 1 and the subdivision thereof into national 11 — Article2 provides as follows. quotas — they applied to the Community 'TACs for stocks or groups of stocks to which Community rules apply and the snares of these catches available to the Community are hereby fixed for 1988 as set out in the 9 — OJ 1983. L 24, p 30 annex'

OPINION OF MR TESAURO —JOINED CASES 6/88 AND 7/88

second recital in the preamble and Article 13 — OJ1987,L 375, p. 61. 14 — OJ 1987, L 375, p. 63. 11 of that regulation). 15 — OJ 1987, L 375, p. 5!.

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measures which are intended to give effect the second recital goes on to say: to the Community rules on the conservation of resources.

'whereas it is essential to the proper In the case of Regulation No 3151/87, the management of such fisheries agreements, measures in question are extended to fishing which require the Community to grant carried on in waters within the exclusive substantial financial compensation in return economic zones of particular developing for fishing rights and to provide the countries. In those waters the Community non-member countries concerned with rules limiting fishing possibilities are not certain information on the catches taken, applicable, nor are there any reciprocal or that the Commission be informed of the other agreements based on the observance outcome of the activities of vessels flying the of TACs and quotas. Indeed, there is often flag of a Member State in the waters falling no machinery to ensure conservation at all. within the jurisdiction of a partner country; Where machinery of that kind is in place, it ... therefore, rules should be laid down for is based on different criteria such as, for the recording and notification of catch example, limitation of the number of fishing data'. licences according to the number of vessels or the tonnage thereof.

It is therefore clear that in the present case the controls were introduced in response to The situation is therefore objectively a financial objective and not for the conser­ different from the first one described and vation of fisheries resources, the aim being above all is one in which the control to obtain more detailed information facili­ measures envisaged in Regulation No tating better appraisal of the ratio between 2241/87 clearly cannot pursue the aims the costs and benefits deriving from the appropriate to them. Community's participation in the fisheries 16 agreements with developing countries.

I have just indicated that, in those cases extended to stocks not subject to total where it was necessary to extend the control allowable catches or quotas'. measures to fishing in non-Community zones in which, nevertheless, there existed — particularly under reciprocal agreements — TACs and quotas, com­ pliance with which had to be monitored, the 'Other stocks' are therefore stocks for extension was effected not pursuant to which a quantitative limit has not been Article 10 but rather by means of a specific imposed. The word stocks, which in Italian provision contained in a Council regulation. is translated as 'riserve' or 'popolazioni' (see for example Regulation No 172/83), is therefore to be interpreted, as is normal in the industry, not in the more general sense of a collection of items but rather in the That observation does not, however, settle more specific biological sense of a collection the matter. It is still necessary to consider of animals of the same origin (see Petit whether the powers vested in the Robert and The Shorter Oxford English Commission by Article 10 authorize it to Dictionary) decide on the extension at issue in these proceedings.

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waters), are indeed subject to TACs in stocks which, by contrast, are subject to Community waters. That applies for TACs. In other words, extension is possible example to hake (Merluccius), to mackerel only in a situation where there are stocks (Tracburus), common sole (Solea), to which are, at the same time, subject to anglerfish (Lophius) and to shrimps TACs and to the related control measures. (Penaeus), as is apparent from a comparison of the second annex to Regulation No 3151/87 and the annex to Regulation No 3977/87, which indicates the TACs for 1988 by stock and zone and their allocation among the Member States. It should also be noted that Article 10 gives no textual support for the Commission's view. That provision, although referring to the application of controls to 'additional stocks' and therefore, essentially, to other fish species (not subject to TACs), makes It goes without saying, therefore, that, absolutely no mention of any possibility of by virtue of that interpretation, the extending those controls to other zones Commission claims the power to extend the where there is no limitation of fishing possi­ control measures laid down by Regulation bilities and where, consequently, Regulation No 2241/87 to all the zones to which the No 2241/87 does not apply. But I shall have Community conservation rules do not apply. occasion to revert to this specific question later.

According to a different interpretation, on the other hand, Article 10 authorizes the 10. This interpretation, moreover, does not Commission to extend controls over fishing detract from the useful effect of the for stocks not subject to TACs, but only hi provision and, at the same time, defines its those areas where rules apply to limit fishing meaning in the light of its legislative context possibilities and where the control measures and of the whole rationale of Regulation envisaged by Regulation No 2241/87 are No 2241/87. already applied to the stocks subject to TACs.

I would emphasize that the hypothesis additional controls in fact relate to the same which I have just outlined is one which can fishing activity which, for the stocks subject frequently materialize in the context of to Community TACs, is already subject to management of the fisheries policy. It will the application of Regulation No 2241/87. be remembered for example that in Regu­ That interpretation therefore confines the lation No 172/83 (fifth recital) reference is exercise of the power conferred on the made to a number of fish stocks for which Commission by Article 10 within the same the fisheries are still developing and for material limits as those laid down in the which few, if any, scientific data are regulation which confers that power. It is an available and for which, therefore, quota interpretation which endows Article 10 with allocations were not made at that time. a scope which, although supplementary, is Furthermore, the application of controls to nevertheless consistent with its legislative stocks not subject to TACs may also prove context — and therefore is not innovative. desirable in order to determine the intensity of exploitation of species which, if not themselves requiring quantitative limitations, might nevertheless influence the stocks of other species which are subject to TACs. But above all, in the circumstances of this case, the Commission's decision to extend the control measures under Article 10 responds to essentially the same objectives as those pursued by those control measures The power at issue is therefore one which and, more generally, by all the measures makes it possible, where necessary, to provided for in Regulation No 2241/87. extend the scope of the control measures The monitoring of catches of stocks which referred to in Articles 5 to 9 of Regulation are not (or not yet) subject to TACs was in No 2241/87 by introducing an obligation fact decided upon in order to obtain more additional to those to which fishermen and precise information on the extent of the the Member States are subject as a result of exploitation of the resources concerned and the direct application of those articles. thus to ensure balanced management thereof.

the control measures, as has been seen, were objectives of the provisions in question and extended for reasons relating exclusively to of the measure of which they form part. ' the financial management of the fisheries That is an essential principle governing the agreements with developing countries. delegation of executive powers. Although implementing regulations may not go further than is necessary in order to give effect to the law to which they refer, they The only limitation which the Commission may nevertheless contain rules supple­ then encounters in the exercise of that menting those laid down by the primary power is the fact that it may not impose new legislation, provided that they are in controls but must in every case continue to conformity with the objective of that 19 rely on those provided for in Regulation No primary legislation. 2241/87. But apart from that limitation, which is of an extrinsic nature, the fact remains that in such circumstances the inter­ pretation of Article 10 produces a result I would also point out that, for the purpose which is clearly creative. Not only is the of defining the meaning of a provision, it is scope of the regulation supplemented but its important to examine its context and the material, rather than territorial, field of Community precedents (see the judgment in application is extended. The rules for Rey Soda, paragraph 33). control are no longer used to 'ensure that the limits fixed elsewhere for permissible levels of fishing are observed' (second recital to Regulation No 2241/87) but are imposed for other purposes (of a financial nature in Having regard to the foregoing consider­ the present case) in relation to fishing ations, it seems to me to be clear that the activity which is not subject to the conser­ Commission, in defining the scope of the vation rules. powers conferred on it by Article 10, relied on an interpretation of that provision which completely disregards its legislative context and the scope and objectives of Regulation No 2241/87. 12. Is such a result justified in the light of the principles which govern the exercise of the Commission's executive powers?

rather than interpreting Article 10 in apparent from it that the extension of the accordance with the customary principles, in control measures is intended to provide the fact resorted to extrapolation, uprooting Commission with information which will Article 10 from its context, taking enable it better to manage and negotiate the advantage of the room for manoeuvre financial side of the agreements with which the letter of that article appeared to developing countries. The statement of allow it, and ultimately making use of it for reasons thus seems to me to be sufficient, radically different situations and purposes. having regard to the well-known previous decisions of the Court (see most recently judgment of 7 July 1988 in Case 55/87 Moksel [1988] ECR 3845). I also consider it reasonable to conclude that if the Council had wanted, by means of Article 10, to vest the Commission with the power to apply Regulation No 2241/87 to such diverse relationships and purposes, it As regards the manifest error of appraisal, I would not only not have accorded to Article think it is clear from the documents before 10 the marginal position which it in fact the Court that the extension of the controls occupies within the scheme of the measure provided for by Regulation No 2241/87 to but indeed would not have failed to say so fishing in the waters of developing countries expressly and, in particular, to state its is not without difficulties. reasons for doing so.

If it were necessary to introduce conser­ It is not impossible that such controls might vation rules, and the accompanying be of some use for the specific purpose of controls, for fishing in the exclusive obtaining information concerning the economic zones of developing countries, financial management of the agreement. this would be done by means of bilateral agreements and the measures adopted Those difficulties therefore, although indi­ would be of the appropriate kind and meet cative of an act ultra vires on the part of the the appropriate requirements. Commission in this case, are not such as to render the contested regulation unlawful. It does not seem to me, however, that the difficulties arising from the transposition of 14. In conclusion, I consider that the controls at issue are such that in them­ Commission Regulation No 3151/87 is void selves they are indicative of a manifest error by virtue of the Commission's lack of of appraisal on the part of the Commission. authority to adopt it.

I therefore propose that the Court:

(i) uphold the application;

(ii) order the Commission to pay the costs.