C-62/89

My Lords, are required to inspect fishing vessels in order to ensure compliance with conser­ vation and control measures and to take penal or administrative action against the skippers where, as a result of an inspection, 1. In these proceedings under Article 169 it appears that a vessel does not comply with of the EEC Treaty, the Commission the relevant rules. Articles 6 to 9 impose a contends that the French Republic failed in number of obligations on Member States 1985 to take the necessary measures to and on the skippers of fishing vessels ensure that quotas for certain fish stocks concerning the regulation of catches. Thus were respected. Article 6(2) requires Member States to take appropriate measures to verify the accuracy of declarations made by skippers concerning the quantities landed and the location of catches for each stock or group of stocks subject to a TAC. Articles 7 and 8 require 2. Council Regulation (EEC) No 170/83 the skipper of a vessel who tranships quan­ establishing a Community system for the tities of catches of a stock or group of conservation and management of fishery stocks subject to a TAC, or who lands such resources (Official Journal 1983, L 24, catches outside the Community, to inform p. 1) provides for the fixing, on an annual the Member State whose flag his vessel is basis, of total allowable catches ('TACs') for flying of the quantities involved and of the stocks or groups of stocks for which a limi­ location of the catches. Under Article 9, tation of fishing is required, and for the Member States must ensure that all landings distribution of the volume of catches of stocks or groups of stocks subject to available to the Community between the TACs are recorded (paragraph 1) and must Member States (Articles 3 and 4). Under notify the Commission, before the 15th day Article 5(1), Member States may exchange of each month, of the quantities of such all or part of the quotas allocated to them in stocks landed in the preceding month, indi­ respect of a species or group of species. cating the location of the catches Article 5(2) provides that Member States (paragraph 2). shall determine, in accordance with the applicable Community provisions, the detailed rules for the utilization of the quotas allocated to them.

7. Article 1 of Regulation No 6/85 provided that catches should be limited to the quotas set out in the annex and The Member State is required to notify the Article 2 required Member States and Commission of the provisional prohibition, skippers of vessels to comply, as far as and under Article 10(3) the Commission, fishing in the relevant waters was following notification or on its own concerned, with Articles 3 to 9 of Regu­ initiative, is to fix definitively, on the basis lation No 2057/82. The annex to Regu­ of the information available, the date on lation No 6/85 allocated to France a quota which the quota is deemed to have been of 450 tonnes for redfish and 160 tonnes exhausted. On the date on which the quota for flatfish. The validity of the regulation, is deemed to have been exhausted, the which initially applied only until 20 January vessels of the Member State in question 1985, was extended to 31 December 1985 must cease fishing in respect of the relevant by Council Regulation (EEC) No 97/85 stock or stocks. (Official Journal 1985, L 13, p. 5).

8. The French quota for redfish was raised 5. Council Regulation (EEC) No 2241/87 to 970 tonnes by means of exchanges (Official Journal 1987, L 207, p. 1), which completed in November 1985, but French repealed and replaced Regulation vessels caught a total of 984.7 tonnes in No 2057/82 with effect from 30 July 1987, Faeroese waters in 1985. As for flatfish, contains provisions similar to those set out total catches by French vessels in Faeroese above. waters amounted to 708.4 tonnes.

13. In that regard, the Commission argues that Article 10(2) requires a Member State, on the basis of information available to it regarding the level of catches, to fix the 10. On 8 November the French authorities likely date of the exhaustion of the quota issued a recommendation to the French fleet and to take prompt and adequate steps to to cease fishing for redfish and flatfish prohibit fishing from that date. In the in Faeroese waters. By Regulation Commission's view, the recommendation of No 3220/85, which came into force on 8 November 1985 was plainly inadequate in 16 November 1985, the Commission, acting that it was issued some four months after on its own initiative under Article 10(3) of the relevant quotas were exhausted and in Regulation No 2057/82, prohibited further any event had no binding force. fishing for redfish by French vessels (Official Journal 1985, L 303, p. 43). By Regulation (EEC) No 3448/85, which came into force on 7 December 1985, the Commission, again acting on its own initiative, ordered a halt to fishing for flatfish (Official Journal 1985, L 328, 14. Before considering France's defence to p. 20). this allegation, I would point out that while Article 2 of Regulation No 6/85 expressly refers to Articles 3 to 9 of Regulation No 2057/82, no mention is made of Article 10. It has however been assumed in these proceedings that Article 10 did apply in respect of the quotas allocated under 11. In its application in these proceedings, Regulation No 6 / 85 , and I consider that the Commission seeks a declaration that, by that assumption is correct. Where the failing to ensure respect for the quotas Community concludes agreements with allocated to it for 1985 for catches of third countries concerning access and the redfish and flatfish in Faeroese waters, the conservation of fishery resources, under French Republic has failed to fulfil its obli­ which catch limits for Community fishermen gations under Article 5(2) of Regulation in third-country waters are established, and No 170/83 and under Article 1(1) and (2), where in consequence quotas are fixed for Articles 6 to 9 and Article 10(1) and (2) of Member States, it follows that the relevant Regulation No 2057/82, in conjunction rules designed to ensure observance of with Article 1 of Regulation No 6/85. quotas must apply even in the absence of an

18. Thirdly, France argues that there is uncertainty as to the extent to which the two quotas were exceeded or indeed as to 16. First, it assens that it did act promptly whether they were exceeded at all. In that and adequately to prevent the exhaustion of regard, France points to the lack of the quotas, in particular by arranging a harmonization at the Community level of substantial increase in the redfish quota by the conversion coefficient applied by means of exchanges. It also argues that the Member States to the quantities of gutted recommendation must be seen as effective, fish landed in order to calculate the live- since no further landings of the stocks in weight tonnage of such fish. France accepts question were made after 30 October, well that the margin of uncertainty was likely to before the adoption of the two Commission be small, but argues that it could be regulations. sufficient to account for the minor exceeding of the enlarged redfish quota. France also argues that a substantial quantity of redfish catches, and most of the flatfish catches, were made in waters in respect of which there is a dispute as to jurisdiction between the United Kingdom and the Faeroe Islands: there is therefore 17. Secondly, France argues that the doubt as to whether these catches were Commission's strict view of Member States' made in Faeroese waters at all.

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OPINION OF MR JACOBS —CASE C-62/89

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COMMISSION v FRANCE

skippers of vessels; the obligation to keep a 25. Even where the control and monitoring log-book, indicating the quantities of measures prescribed by the Community species caught, as well as the date and legislation and supplementary national location of catches, is already laid down in provisions are fully and effectively applied, Anicie 3 of Regulation No 2057/82. it could still exceptionally occur that a Moreover, as counsel for the Commission sudden surge in the catches of a particular pointed out at the hearing, while it is true stock in practice makes it impossible for a that the 90-day period allowed under Regu­ Member State to anticipate the exhaustion lation No 2807/83 for skippers of vessels to of a quota. However, in such a situation the familiarize themselves with the standardized Member State in question must in any event log-book did not expire until 1 April 1985, take immediate action to prohibit further it is clear from the table of landings referred fishing as soon as it appears that the quota to at paragraph 9 above, that French vessels has been exhausted. did not land any redfish or flatfish before 14 May 1985.

23. In any event, a Member State cannot 26. With regard to the alleged uncertainty rely on practical difficulties in order to as to whether the quotas were in fact justify failure to implement adequate control exceeded, it appears to me that any minor measures. Rather, it is for the Member element of uncertainty arising from the States, who are required to implement uncoordinated application of conversion Community rules in the framework of the factors cannot justify a failure to act under common organization of the market in the Article 10(2). In any event, such a factor sector of fish products, to overcome those cannot account for the large-scale over­ practical difficulties by the adoption of fishing of the flatfish quota. appropriate measures (see judgment of 2 February 1989 in Case 262/87 The Netherlands v Commission [1989] ECR 225, paragraph 15).

allotments for Community fishing vessels enforcement obligations in Article 1(1) and the areas within their jurisdiction in and (2) of that regulation, or from a failure which those allotments may be fished. The to charge all catches made by French vessels list of allotments and fishing areas is sent to against the quota, as is required by the Commission and that information serves Article 10(1) of the same regulation. In as a basis for the allocation of Member addition, the Commission argues that the State quotas. There is nothing in the overfishing of the quotas may have resulted agreement to indicate that there is a dispute from a failure by the French authorities to as to jurisdiction between the United adopt the necessary detailed rules for the Kingdom and Denmark, and France has not utilization of the quotas, as required by produced any evidence showing that, prior Article 5(2) of Regulation No 170/83. to these proceedings, the fishing areas Accordingly, the declaration sought by the communicated by the Faeroese authorities Commission in the application also refers to have been challenged or queried by any a failure to fulfil these additional obli­ Member State. In the circumstances, it is gations. plainly not open to France to rely on this argument to justify its failure to respect the quotas.

31. However, the declaration sought by the Commission at the end of its reply is signifi­ cantly narrower in scope, referring only to 28. Finally, the fact that the Community- the alleged breach of Article 10(2) of Regu­ quotas for the relevant stocks in Faeroese lation No 2057/82 in conjunction with waters were not exceeded in 1985 is, in my Article 1 of Regulation No 6/85. It view, quite irrelevant, since the fundamental therefore appears that the Commission has obligation resting on a Member State under decided not to maintain its additional alle­ the Community legislation is to ensure gations, and that the Court is not required respect for its national quotas. to consider those allegations.

(1) declare that the French Republic has failed to fulfil its obligations under Article 10(2) of Council Regulation No 2057/82 in conjunction with Article 1 of Council Regulation No 6/85 in that in 1985 it did not take prompt and adequate measures provisionally to prohibit fishing by vessels flying the flag of France or registered in France for redfish and flatfish in Faeroese waters;

(2) order the French Republic to bear the costs.

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