C-64/88

COMMISSION v FRANCE

O P I N I O N O F MR A D V O C A T E GENERAL LENZ delivered on 27 February 1991 *

Mr President, 3. According to Article 1(1) of Regulation Members of the Court, No 2057/82 7 and (since 1 August 1987) No 2241/87 8 each Member State must, within ports situated in its territory and within maritime waters subject to its sover- eignty or its jurisdiction, inspect fishing vessels flying the flag of, or registered in, a Member State in order to ensure compliance A — Facts with all the regulations in force concerning conservation and control measures. 9

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the Treaty. Only when that is clear can we judge to what extent the action is admissible and, in the light of the evidence produced, well founded. 14. As regards the Commission's application to the Court, the complaint expressed therein covers that organizational aspect. In the form of order which it seeks, as stated in its application, the Commission refers to 12. 2. At first sight, the Commission's the wording, which I have just cited, used in complaint appears to be a monolithic unit Regulations Nos 2057/82 and 2241/87 and but in truth contains three different aspects seeks a declaration that France has infringed which are logically linked. those regulations 'by failing to undertake control activities ensuring compliance with the technical conservation measures laid down in Council Regulations Nos 171/83 and 3 0 9 4 / 8 6 . . . ' . " The remainder of the

According to that provision 'the Member States shall ensure' that the provisions and measures referred to in Article 1 of the particular regulation are complied with. Such organiz- 15. It is in that context that the complaint ational measures are necessary for various that France applied national rules instead of reasons. As far as concerns action in respect Community provisions in relation to the size of infringements by fishermen, it is of the mesh and the minimum size of fish 13 necessary, as in the case of the transposition falls to be seen. That complaint, by reason of directives, for there to be legal bases of its very terms, touches on the organ- governing the details of the penalties and 11 — A number of passages from the relevant document; are procedures.

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ization of measures for which the Member Commission therefore not only objects that States are responsible, for it implies the there is a gap between the infringements existence of statutory or administrative rules found by the French authorities and the which are made the subject of the infringements which could in fact be found inspections and are in conflict with but also complaints of 'l'absence corrélative Community provisions on technical de poursuites administratives ou pénales'. 16 measures of conservation.

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the procedure therefore depends, 18 must d'inspecteurs de la Commission, il a été define the subject-matter. 19 Moreover, the observé que le maillage des filets ou leurs Commission's reasoned opinion and the dispositifs contrevenaient au règlement application must be founded on the same n° 171/83 du Conseil, titre I; cependant, le grounds and submissions.20 service d'inspection de votre gouvernement n'a pris aucune mesure immédiate à cet égard et, en général, aucune mesure pénale ou administrative ultérieure n'a été prise'. 21

That quotation also concerns the point, already made above, that proper organ- 'A chaque occasion où des navires ont fait ization of inspections is obviously not l'objet d'un contrôle en mer en présence ensured if the Member State concerned, by means of legislative or administrative 18 — Judgment in Case 31/69 Commission v Italy [1970] measures, adopts technical provisions which UCR 25, paragraph 13, judgment in Case 211/81 differ in content from the Community Commimon v Denmark [1982] FCR 4547, paragraph 9 provisions and bases the inspections on 19 — Judgment in Case 211/81, ibid., paragraph 8, judgment in Case 229/87 Commnsion v Hellenic Republic [1988] them. ECR 6347, paragraph 12 20 — Judgment in Case 211/81, ibid, paragraph 14, judgment in Case 298/86, ibid, paragraph 10 21 — M y emphasis.

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25. In the result, it must be found that the complaint of organizational deficiencies in 23. On the other hand, it was possible and inspections contained in the application to reasonable to expect France to react at the the Court was already contained in the organizational level: possible, because the letter of formal notice (and was also Government could have forwarded to the correctly understood). Commission the existing legislative and administrative measures, or any which had just been adopted, which in its view constituted the basis for proper inspections (in the future); reasonable, because such 26. The reasoned opinion of 18 November measures of general application are the most 1986 presents the same picture. It essentially appropriate for improving the general reproduces literally the complaints picture of the inspections position to which formulated in the letter of formal notice and the Commission objected and thus reducing elaborates on them. On page 3 of the automatically the number of individual de- opinion there is reference to the fact that ficiencies in inspections. the Commission's findings from on-the-spot inspections were 'quite representative'. They were fully confirmed by the inspections in 1985. At 2.5 of the opinion, it is again 24. The French Government's answer complained that national instead of reflects this. In its letter of 22 January 1985 Community rules were being applied to the

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29. (b) As far as the actual and specific conduct of the inspections is concerned, the 27. It may therefore be stated that in problem of agreement between the subject- relation to the Organizational part' of the matter of the pre-litigation procedure and complaint previously defined there is that of the application to the Court presents concordance between the letter of formal itself rather differently. There is no doubt notice, the reasoned opinion and the that during the entire pre-litigation application to the Court. procedure the Commission referred in that respect to alleged deficiencies said to have been brought to light on the inspections by the Commission's officials. On this point, however, it might be thought that the defi- ciencies referred to in the application, in so 28. For the sake of completeness, let me say far as they concern the period after the issue a few words on the question of certain of the reasoned opinion (up to and changes in the substance of the Community including 1987), are not the same as those provisions. In its reply of 21 January 1987 which were the subject-matter of the to the reasoned opinion, the French auth- pre-litigation procedure. I think, however, orities stated that Regulation No 3094/86 that in that respect we can rely on the had in certain respects somewhat diluted the case-law of the Court which in such cases requirements of the previous regulation, affirms that the subject-matter of the Regulation No 171/83. That statement pre-litigation procedure and that of the refers to the minimum size of fish 22 and the application are, as required, identical where prescribed minimum mesh size. 23 In the the circumstances complained of, if they view of the French authorities, those have arose after the end of the pre-litigation amendments reconciled the requirements of procedure, are 'of the same kind' as those Community law and French practice on underlying that procedure. 25 Since there has those issues (to what extent is not said). That raises the question whether the 24 — See the (udgment in Case 39/72 Commission v Italy [1973] ECR 101, paragraphs 9 and II, the judgmcnt in Case 103/84 Commimon v ITALY[1986] ECR 1759, para- 22 — See Annexes V' and VI to Regulation No 171/83, Annexes graphs 8 and 9, and the judgments in Case 54/84 II and III to Regulation No 3094/86 Commissionv Italy [ 1987] ECR 2717. paragraph 6 23 — See Annexes I to IV to Regulation No 171/83; Annex I to Regulation No 3094/86 25 — Sec judgments cited i n footnote 24

32. As regards the merits, it only remains to consider whether the Commission, on which the burden of proof lies, 31 has succeeded in 26 — See paragraph 24. proving infringement of the Treaty. 27 — See page 2 of the reply of 21 January 1987 where it is stated: '(Le gouvernement français) a pris sur lui de donner des consignes à ses services afin d'éviter tout risque de désordre.' On the same page, there is mention of 'systematic action' in 1986 which is alleged to have brought about certain improvements; the said improvements are illustrated by a table of individual inspections which, in the 33. 1. Following on from my observations opinion of the French authorities, shows the resulti of the action in a particular area. on the subject-matter and the admissibility 28 — On page 5 of the defence, the relevance ('caractère signi- of the action, I should like to make a ficatif') of the Commission's findings are queried. On page general remark on the situation as regards 6 it is stated that an information and inspection campaign of which previous notice had been given was carried out; on that subject the French Government produces a letter in which the prefects of the relevant departments were 29 — Second paragraph; see also the claim for relief in the referred to Community provisions on mesh size. It is then application: 'contrôle garantissant le respect'. stated: 'Cette action, dont le gouvernement français 30 — Under 1.1. considère qu'elle répond à l'obligation de moyen découlant 31 — See, essentially, the judgments in Cases 96/81 and 97/81 de l'article 1er du règlement n° 2241/87, n'a, d'ailleurs, Commission v Netherlands [1982] ECR 1791 and 1819; pas été sans résultat, comme le montre le tableau figurant most recently confirmed by the judgment in Case 244/89 en annexe 3.' Commissioni France [1991] ECR I-163, paragraph 35.

evidence in relation to the three parts of the were less strict than those of the subject -matter of the action. I have already Community. Both those admissions emerge said that the Commission charges France from a letter from the Secretary of State with individual deficiencies in inspections responsible for maritime matters of 28 May and in taking action precisely in so far as 1985. According to that letter, discrepancies these are the consequence of inadequate of up to 5 mm are accepted in the minimum organization. In my opinion, the mesh size. As regards the minimum size of Commission's application must be allowed if fish, action was to be taken in respect of the alleged deficiencies in organization are hake only if it was 'obviously' undersized, proved, without its being necessary for the namely of a length of between 15 and 25 individual cases resulting from those de- cm, whereas in Annex V to Regulation No ficiencies to be specifically proved. These 171/83 the minimum size specified is 30 cm. cases are the necessary consequence of the deficiencies in organization, just as are for example infringements by national auth- orities of the provisions of directives which the state concerned has not yet transposed into its law. That is so a fortiori in the 36. It is further apparent from that letter present case, since France itself admitted in that rules of that kind applied not only to a the pre-litigation procedure that many small part of the French coastal waters but fishermen were loath to accept action by the had been introduced with respect to a very national officials to implement the wide geographical area. 32 Community rules. It is precisely in such circumstances that, where the organization is imperfect and in particular there are no clear directions to the officials, there will necessarily be deficiencies in inspections and 37. It is apparent from the reply of the in action taken in respect of infringements. French authorities of 21 January 1987 to the Commission's observations that that infringement lasted until after the expiry of the period laid down in the reasoned opinion. The Commission has stated in the reasoned opinion 33 that, according to infor- mation in its possession, the tolerances 34. 2. From that point of view, I should like referred to above in relation to mesh size to turn to the individual technical measures and minimum size of fish were still being of conservation and consider to what extent applied. The reply from the French auth- France has failed to fulfil its duty to ensure orities refers to the amendments to those proper monitoring. rules made by Regulation No 3094/86. It then stated on that point:

troubles qui auraient retardé la remise en with its obligations in that respect) but ordre nécessaire d'une activité essentielle content themselves — in a negative pour certaines régions françaises.' manner — with arguments in respect of the probative force of the Commission's findings. The same is true mutatis mutandis of the defence. 38. In so far as it emerges from that statement that in the view of the French Government the action of the French auth- orities in relation to the two measures of 41. Thus, the Commission's complaints are conservation was in accordance with not disputed either in the answer to the Community law since the introduction of letter of formal notice or in the reply to the Regulation No 3094/86, this would be a reasoned opinion. In particular, it is not circumstance without any relevance to the alleged that France has complied with the merits of the action, just as it would be relevant obligations. irrelevant to its admissibility, since it arose long after the expiry of period laid down by the Commission in its reasoned opinion. 34 42. Although France's manifestly evasive attitude on both points suggests that the infringement alleged by the Commission 39. (b) There is no express admission of actually took place, it does not however that kind in respect of the two other allow to any compelling conclusion in that technical measures of conservation respect and thus does not in itself amount to (attachments to nets (devices) and proof. restrictions on by-catches). However, I consider the infringement proved, for it is apparent that the defendant Member State's inspectorate did not give the officials acting 43. Such a conclusion may, however, be on the ground all the information and drawn in conjunction with the defendant directions necessary for due monitoring. Member State's statements and the documents submitted by it in relation to the measures of organization which it actually adopted. 40. First, it may be observed that in its answer to the letter of formal notice France queried the Commission's complaints only to the extent 35 that it questioned whether 44. In the reply of 22 January 1985 to the the facts found by the Commission's Commission's letter of formal notice, that is inspectors were representative. The authors nearly two years after Regulation No of the letter thus do not attempt to 171/83 entered into force, it is mentioned deprive — positively — the Commission's that the knowledge of the department complaints of their force by evidence of the responsible for monitoring would be measures actually taken (which would easily brought up-to-date; since this measure have been possible if France had complied would be publicized, the situation in relation to monitoring would gradually 34 — Case 200/88 Commission v Hellenic Republic [1990] ECR I-4299, paragraph 13. improve. 36 That shows that in any event 35 — Except in respect of the minimum size of fish, which I have dealt with in the previous point. 36 — See above, paragraph 24.

until that date not all the requisite measures 46. The general picture which arises from had been adopted. That situation lasted all the foregoing is finally confirmed by the until after the expiry of the period summary of the reports of the Commission's prescribed by the Commission in the officials mentioned at the beginning of this reasoned opinion. In the reply of Opinion. It would take us too far to go 21 January 1987 to that opinion it is stated through and comment on all the documents at the beginning, after a brief rehearsal of produced by the Commission. I shall the Commission's complaints, that it is not content myself with certain references to the denied that deficiencies may have arisen findings made in 1987, after the expiry of here and there; it was however not possible the period laid down in the reasoned to implement the Community provisions opinion (findings which, it seems to me, are within a year of their entry into force. After moreover representative of the earlier a statement of position as regards the period). amendments effected by Regulation No 3094/86 and their alleged consequences as regards the lawfulness of the French practice, 37 it is stated at the end of the letter that the French Government was in the process of preparing very precise instructions to its departments in order to ensure as soon as possible that the conser- vation provisions would be better observed. Up to that point, therefore, such precise instructions had not been given to the 47. First, it is apparent from the statements departments. of some of those involved that the instructions to the officials responsible for monitoring were not in accordance with the requirements. Thus, on page 17 of the said document 39 there is a statement from a 'chef du quartier' who claims that for three years he has had no instructions from the competent authorities; he was attempting to implement the rules by means of persuasion, which could take five years. From that I conclude that, at that time, that implemen- tation was not the subject of sufficiently 45. That those statements relate, at least in clear instructions. That accords with the fact addition, to the problem of by-catches and that the authors of the report mentioned a attachments is apparent from the defence. 38 little later in connection with another Mention is then made of an information inspection 40 that the powers and knowledge and inspection campaign which, in the view of the French monitoring officials were of the French Government, satisfies its duty insufficient. If France had fulfilled its duty to act under Article 1 of Directive 2241/87. with regard to the requisite information and The letter which is annexed to the defence instructions there would be no explanation as evidence of the measures adopted (annex for the statement of a 'commandant' 4 1 that II) is, however, belated (it is dated 30 June he had instructions not to inspect certain 1984) and refers only to the Community fishing vessels. provisions on mesh size. 39 — Under 1987.IV-C 37 — Sec above, paragraph 28 40 — See p 19, under I987-VI1-C 38 — See page 6 41 — Ibid (previous footnote)

50. (a) First, it is necessary to discuss the arguments, already mentioned at the 52. The said arguments of the French beginning of my Opinion with regard to the Government must therefore be rejected. right to a fair hearing, according to which the content of the Commission's document with which I have just dealt should not be accepted as evidence since France is not able to identify the individual incidents and therefore cannot effectively defend itself. In 53. (b) From that point of view, the French the given circumstances I do not consider Government's arguments must still be that argument to be valid. In order to considered with respect to two points conclude that there are insufficient measures relating to proof of an infringement of the of organization the Court does not have to Treaty. It produced two tables giving an be persuaded that individual cases of de- overview of certain inspections. ficiency in monitoring have been estab- lished. In order to undermine the Commission's complaints from the point of view of evidence two avenues were open to the defendant Member State, even without 54. (aa) The first table is to be found in the an identification in the sense for which it reply of 21 (French text 20) January 1987 contended. First, it would have been to the reasoned opinion and contains the possible to produce to the Court all the results of inspections carried out between relevant instructions and information (and 1 September and 1 November 1986 in possibly, also the statutory provisions relation to problems concerning mesh size forming the basis for the action by the and the minimum size of fish. It is sufficient competent authorities). Had this shown that to observe that that action was undertaken the necessary organization measures had after the expiry of the period which the been adopted — in good time — the Commission laid down in the reasoned application would have had to be dismissed. opinion, that it affects only a limited area and that, finally, the number of the 42 — 1987-I-A; -II-B; -IX-B; -IX-C. inspection measures, of the infringements