C-258/89

Mr President, 3. The regulations allegedly infringed Members of the Court, establish a control system with regard to fishing activities carried on by the vessels of Member States, in order to ensure compliance with the restrictions on fishing laid down by the annual regulations fixing the TAC by stock or group of stocks, and the allocation between the Member States 1. In the present application, the of the volume of catches available for the Commission seeks from the Court a Community. The measures for monitoring declaration that, by failing to apply the catches may be summarized as follows. control measures laid down by Regulation (EEC) N o 2 0 5 7 / 8 2 , ' and in particular Article 1 of those regulations requires, in Articles 1, 6 to 9 and 10 thereof, and by particular, the competent authorities of a Regulation (EEC) N o 2241 / 8 7 , 2 and in Member State to take penal or adminis- particular Articles 1, 5 to 9 and 11 thereof, trative action in order to curb any to catches made outside the Community infringement of the rules in force fishing zone of stocks or groups of stocks concerning conservation and control subject to a total allowable catch (TAC) or measures. Moreover, Member States are quota, the Kingdom of Spain has failed to required to ensure that all landings by fulfil its obligations under the EEC Treaty. fishing vessels flying the flag of a Member State of stocks or groups of stocks subject to a TAC or quota are recorded, and to notify the Commission of the information received. 3 Each Member State is required provisionally to prohibit vessels flying its flag from fishing for the species of a given 2. The facts of the case are not disputed by stock, with effect from a date fixed by it, so the parties and may be briefly summarized. as to ensure that the quota applicable to the In 1986 and 1987 the Commission's species in question is not exceeded. 4 In inspectors found that during those two years addition, the skippers of fishing vessels are the Spanish authorities had not recorded catches of species subject to a TAC or quota to submit to the State where the catch is made in ICES (International Council for the landed and to the flag State a declaration Exploration of the Sea) sub-zones VI, VII concerning landings and transhipments or and VIII outside the 200-mile limit of the quantities retained on board of stocks Community fishing zone. The Spanish auth- subject to a TAC or quota and to keep, in orities took no penal or administrative respect of those stocks, a logbook indicating action in respect of those landings. the quantities of each species caught and kept on board and the date and location of * Original language: French. such catches by reference to the smallest 1 — Council Regulation of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member Sutes (OJ 1982 L 220, p. 1). 2 — Council Regulation of 23 July 1987 establishing certain 3 — Article 9 in both regulations. control measures for fishing activities (OJ 1987 L 207, 4 — Article 10 of Regulation No 2057/82, Article 11 of Regu- p. 1). lation No 2241/87.

5. For the two years in question, 1986 and 1987, the quotas allocated to Spain were 9. According to the Commission, the regu- fixed by two regulations. 7 lations in question lay down 'unequivocally' that TACs and quotas are applicable to all ICES divisions or sub-zones, unless there is evidence to the contrary. 6. In order to define the zones in which TACs and quotas may be applied, those regulations retain the ICES delimitation of sub-zones and various statistics on fisheries in the North East Atlantic, and the delimi- 10. On reading the regulations in question, tation of zones fixed by the Fishery it is apparent that it is only in certain situ- Committee for the Eastern Central Atlantic ations that the relevant ICES zone is (FCECA). followed by the designation 'EC', while in other situations there is no such desig- nation. 8 It is clear, therefore, that in the latter case the TAC or quota applies to the whole of the ICES zone without being 7. It should be borne in mind, therefore, limited only to such part as is within the that it is those regulations that fix the territorial waters of the Member States of quotas for each species, specifying the zone the Community. Moreover, in the regu- or zones in which they may be applied. It is lations in question, the determination of certain quotas is accompanied by the words: 5 — Anieles 3, 6, 7 ind 8 of Regulation N o 2057/82 and 'May be fished only in the waters under the Anieles 5, 6, 7 and 8 of Regulation No 2241/87. 6 — Council Regulation of 25 January 1983 establishing a sovereignty or within the jurisdiction of the Community system for the conservation and management Member State concerned, or in international of fishery resources (OJ 1983 L 24, p. I). waters of the zone concerned.'' Finally, and 7 — Council Regulation (EEC) N o 3777/85 of 31 October 1985 amending Regulation (EEC) No 3721/85 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1986 and certain conditions under 8 — See, in particular, Annex I to Regulation No 3777/85 which they can be fished (OJ 1985 L 363, p. 1) and (OJ 1985 L 363, p. 3 « seq.), Annex I, columns 2 and 3, Council Regulation (EEC) N o 4034/86 of 22 December and Annex II to Regulation N o 4034/86 (OJ 1986 L 376, 1986 fixing, for certain fish stocks and groups of fish p. 43 et seq.). stocks, the total allowable catches for 1987 and certain 9 — Emphasis added; see, for example, Regulation No 3777/85 conditions under which they may be fished (OJ 1986 (OJ 1985 L 363, p. 6, notes 1 and 2) and Regulation N o L 376, p. 39). 4034/86 (OJ 1986 L 376, p. 54, note 1).

above all, the regulations refer to certain of authority to fix TACs in international ICES zones, such as Zone IX for example, waters were well founded, the Commission's which are essentially outside Community application concerning non-compliance with waters. the rules on the monitoring of catches made in those waters would have to be dismissed. It is equally clear that if Spain's defence were to be upheld by the Court, the regu- lations fixing the quotas would be inap- 11. Thus there is no ambiguity: those regu- plicable in so far as they relate to the zone lations fixed quotas for certain rones which extending outside Community waters. The are not restricted to 'Community' fishing Kingdom of Spain, for its part, does not waters but which also concern, where wish its arguments to be treated as an appropriate, international waters. objection of illegality, and contends that it is a matter of interpreting the regulations. However, the Court must find that the substance and subject-matter of Spain's defence constitutes an objection of illegality, 12. The Kingdom of Spain, and once again and consequently redefine it as such. Let me this is its only defence, disputes the emphasize that, since what is being disputed Community's authority to adopt measures is the Community's authority which has limiting fishing activities in international actually been exercised through the regu- waters. lations in question, the 'label' which the defendant State attaches to its defence obviously cannot prevent the Court from reconstructing it, so as to hold that in actual fact it constitutes an objection of illegality. 13. Whether Spain realizes it or not, its defence constitutes an objection of illegality against the regulations in question since there is no scope for interpreting those measures in that respect, contrary to what Spain has suggested. The Community has 15. From that point of view, although the clearly exercised the authority that the Commission apparently perceived at the Kingdom of Spain disputes. N o matter how hearing that Spain's arguments in fact the defendant presents its arguments, these constituted an objection of illegality against consist precisely in calling into question the the regulations in question, it did not existence of such authority. comment in any way on whether it was permissible for a State to raise such an objection against a regulation in proceedings brought against it for failure to fulfil its obligations. 14. No doubt, in the instant case, Spain's assertion is not that the regulations alleged by the Commission to have been infringed by that State are illegal; Spain is essentially disputing the legality of the provisions fixing 16. It would have been desirable, moreover, the TAC zones, with which the rules on the for the parties to have clearly stated their monitoring of catches referred to in the views in that regard, since the fundamental application are specifically intended to question, which is of some importance, has ensure compliance. Clearly, if Spain's not to date been clearly resolved by the arguments concerning the Community's lack Court in its decisions.

17. To my mind, the Court cannot evade '(Article 184) provides that any party may, that question in the instant case. An exam- in proceedings in which a regulation is in ination of the Kingdom of Spain's issue, plead the grounds specified in the first arguments necessarily leads to the conclusion paragraph of Article 173, in order to invoke that a State may rely on the illegality of a the inapplicability of that regulation'. regulation which forms the basis of an action against it for failure to fulfil its obli- gations. That standpoint cannot be adopted 19. Another point is that in its judgment in by implication and, in my view, it is Commission v Germany, n the Court purely necessary to tackle the question at issue. As and simply examined the objections of I said, the Court has not given a clear-cut illegality raised by the defendant State answer to that difficulty. Its case-law does, against the rules with which, according to however, contain some interesting pointers. the Commission, it had failed to comply. However, an examination of the decision and of the Report for the Hearing reveals that no attention had been paid specifically to the procedural problem at issue.

However, it against an individual decision addressed to must be said that the Court's solution was it, the Court pointed out that not to deny a State, generally speaking, the benefit of being able to raise an objection of illegality against a regulation; instead, the 'the objection provided for in Article 184 of wording of the Court's decision quite the Treaty is limited under that provision to clearly supports the conclusion that it proceedings "in which a regulation of the accepted that possibility in principle.

Member State against which proceedings Court in its judgment, when it pointed out have been brought for failure to fulfil its that obligations. 10 — Judgment in Case 32/65 [1966] ECR 389. 12 — Judgment in Case 116/82 [1986] ECR 2519. 11 — Joliét, R. : Le droit institutionnel des Communautés euro- péennes. Le contentieux. Université de Liège, 1981, 13 — Judgment in Case 156/77 [1978] ECR 1881. pp. 132-133. 14 — Paragraph 21.

This passage is relied upon in academic 25. It is obvious that, if 'any party' may rely legal writing against 1 7 the view that on the illegality of a regulation by means of Member States may raise an objection of an objection, that possibility may not be illegality against a regulation which they reserved solely to individuals without giving could have attacked. Since they can bring a restrictive meaning to the provision in an action for annulment against a regu­ lation, Member States cannot also be given 19 — Barav, A.: T h e exception of illegality in Community Law; the possibility of raising an objection of A Critical Analysis', CML Revino, 1974, p. 366; Megret, illegality, without the requirements of legal J., Waelbroeck, M., Louis, J.-V., Vignes, D., Vander- sanden, G.: Le droit de L· CEĶ Vol. 10, p. 359; Dubois, certainty which give rise to the period for P.: 'L'exception d'illégalité devant la Cour de Justice des Communautés européennes', CDE 1978, p. 411 et seq.: instituting proceedings laid down in Article Louis, J.-V.: 'De l'exception d'illégalité dans la juris­ 173 being disregarded. From that point of prudence de la Cour des Communautés européennes', Revista de derecho y jurisprudencia de Administración view, the only function of that provision is (Montevideo), 1965, pp. 119-120; contra, see, in particular, Joliét, R. : op. cit., and Bebr, G. : 'Judicial to 'protect persons against individual Remedy of Private Parties against Normative Acts of the decisions taken on the basis of defective European Communities: The Role of the Exception of Illegality', CML Review, 1966-1967, pp. 7, 11-13. regulations and thus to offset the 20 — Opinion of Mr Advocate General Roemer in Case 32/65 restrictions which are placed on their Italy v Commission and Council (cited above) ; Opinion of bringing a direct action against the regu­ Advocate General Sir Gordon Slynn in Case 181/85 France v Commission [1987] ECR 689; Opinion of Mr lation itself'. ' 8 Advocate General Mancini in Case 204/86 Greece v Commission [1988] ECR 5323; those Opinions were delivered in proceedings brought by Member States and 15 — Judgment in Case 92/78 [1979] ECR 777. not in proceedings for failure by a Member State to fulfil its obligations; in my view, however, the positions taken in 16 — Paragraph 39. those Opinions also apply to an objection of illegality 17 — Joli«, R.: op. cit. raised against a regulation by a Member State defending 18 — Joli«, R.: op. cit., p. 134. an action for failure to fulfil its obligations.

question. 21 Besides, if that provision lays it. 23 However, it must be pointed out in down that an objection of illegality may be that respect that the wording of Article 184 raised 'notwithstanding' the expiry of the refers only to regulations, which, unlike period for instituting proceedings, the decisions, are not addressed to Member argument that this possibility should be States. In that regard, it is quite conceivable reserved to persons who would in fact have that the difference in the rules governing the been unable to take action within that objection of illegality with regard, on the period is not very convincing. one hand, to regulations, which legally are not addressed to the State, and on the other, to decisions which are addressed to the State, is based on the fact that the

as of right. States, which are subject to that measure even though legally it is not addressed to them. 27. Although in its judgment in Simmenthal, referred to above, the Court appeared to link the possibility of initiating an indirect review to the impossibility of bringing an action for annulment, it seems to me that 30. Furthermore, I would draw the Court's such an approach would be too restrictive attention to certain considerations of and contrary to Article 184 if, as a result, judicial policy. By depriving Member States the Member States were denied the benefit of the possibility of raising an objection of of the objection of illegality. illegality against a regulation, there is a real risk of an increase in direct actions which are purely 'preventive'. Moreover, the action for annulment under Article 173 constitutes

29. Admittedly, the Court has ruled out the Commission v Italy [1980] ECR 1099 and 1115, and the possibility of a State raising an objection of Opinion of Mr Advocate General Mavras; in those cases the Italian Government, against which proceedings were illegality against a decision addressed to brought for failure to comply with certain directives, had stated that the matters governed by those measures lay 'at the fringe' of Community powers, and thus amounted to a 21 — See the judgment in Case 25/62 Plaumann v Commission convention drawn up in the form of a directive, while [1963] ECR 95, and the Opinion of Mr Advocate General pointing out that it was not raising an objection of Mancini in Case 204/86, cited above. illegality, and the Court examined the defendant State's 22 — Sec Barav, op. cit., p. 384. arguments.

31. Finally, the argument which is occa- 33. The present case is thus concerned with sionally relied upon, to the effect that the ascertaining the extent to which the participation of the Member States in the Community's internal powers in respect of drafting of regulations within the Council the common fisheries policy encompass the enables them to influence their content and independent adoption of rules in respect of to avert their drawbacks, is far from catches made outside Community waters. In convincing. 25 T o begin with, it would apply, other words, can TACs and quotas be where appropriate, only to regulations extended to catches made in international adopted by the Council in accordance with waters? the rule of unanimity. But above all, even in such a case, those considerations do not in any way impair the right to bring an action for annulment, which is fully available to 34. In that regard, the Kingdom of Spain the Member States. For what reason should submits essentially that the only measures such considerations stand in the way of an which the Community may take with regard objection of illegality? to catches in waters not falling under the sovereignty or within the jurisdiction of the Member States of the EEC are the nego- tiation of international agreements and the adoption of measures designed to implement 32. Consequently, while the Kingdom of those agreements. Spain's reasoning must to my mind be treated as an objection of illegality against the regulations fixing quotas and must be redefined as such by the Court, the Court 35. The Commission's response to the should recognize that a Member State may defendant's standpoint is a particularly rely on that objection by way of defence to detailed series of arguments, not all of an action brought against it for failure to which, however, seem to be of equal merit. fulfil its obligations. I would also point out Let us examine those which are peripheral that, for at least one of the two regulations first. concerned, adopted before the accession to the Community of the Kingdom of Spain took effect, serious questions of principle and procedure could be raised in relation to an action for annulment by that State, when 36. That is the case, first of all, as regards it is that very possibility which, according to the reference to the legislative practice of academic legal writers hostile to the view the Community itself. From that point of that a Member State may raise an objection view, if the scope of the Community's of illegality against a regulation in powers is called into question by the defendant State, the Commission obviously 24 — See lhe Opinion of Mr Advocate General Roemer, cited cannot refute that argument by relying on above, in Case 32/65, which emphasizes that 'the defects the Community rules adopted in the appertaining to a general regulation often do not clearly emerge until the regulation is applied to a particular case'. exercise of the powers which are in fact 25 — Sec Bebr, op. cit., p. 12. now under challenge.

pointing out that 38. Nor does the reference to the conclusion by the Community of inter- national agreements relating to the high seas make any contribution to the pres- ' i t . . . follows [from] Anicie 102 of the Act ent discussion. It is not in any way the of Accession, from Article 1 of the said Community's external powers in that regulation and, moreover, from the very regard, but the scope of its internal powers, nature of things that the rule-making that Spain is calling into question. authority of the Community ratione materiae also extends — in so far as the Member States have similar authority under public international law — to fishing on the high 39. On the other hand, the Commission seas'.29 appears to have been right to rely on the principles laid down in the Court's case-law. In that regard, the arguments of the defendant do not in any way detract from the unequivocal meaning of the Court's 41. In response to such precise reasoning, important judgment in Kramer.26 the Kingdom of Spain argues that the passage in question should be viewed in the context of the judgment, which deals with the question of the Community's external 40. In that judgment, in order to be able to powers, and may not therefore usefully be state that relied upon with regard to internal powers.

'it follows from the very duties and powers 42. That analysis disregards the rationale which Community law has established and behind the Court's case-law regarding the assigned to the institutions of the Community's external powers. Community on the internal level that the Community has authority to enter into international commitments for the conser- vation of the resources of the sea', 27 43. Without examining in detail the Court's approach in this area, I would simply point out that the parallelism between internal the Court first laid down that powers and external powers obviously pre-

44. According to one author: 'Parallelism is the result, and not the cause, of the implicit clearly confirms the existence of parallelism conferral of external powers; the real basis in this area between internal and external of external powers lies in the automatic powers, and does not in any event offer any extension of internal powers. It follows that support for the view that the Community the internal powers required must be of a has no independent authority to restrict legislative nature since it is difficult to see fishing activities on the high seas. how the powers conferred on the Community could make it possible to conclude an international agreement which itself creates rights and obligations if they were not accompanied, in the internal 47. Furthermore, the Commission has, to order, by such legislative powers.' 3 0 The my mind, judiciously relied upon the author continues: 'In Kramer the Court judgment in Van Dam.i4 That case took the view that, since fishing activities concerned the adoption of measures by a inside, and even outside, the limit of Member State, the Netherlands, acting on 200-nautical miles, are subject to the its own, independently of the implemen- Community's common fisheries policy, tation of any international obligation, which which itself forms part of the common agri- prohibited fishing for certain categories of cultural policy, the Community is capable of fish in waters coming within the jurisdiction concluding agreements on fisheries by of the Member States of the EEC, but also reference to Article 4 3 . ' 3 I in non-Community waters, namely those of Norway. Those measures had been taken before the Council adopted the conservation measures laid down by Article 102 of the 1972 Act of Accession. The Court thus 45. If the Court's judgment in Kramer thus acknowledged that the national measures in provides a clear-cut reply which stands in question were 'at the time in question' sharp contrast to the argument put forward within the powers of the Member States, in by the Spanish Government, that argument accordance with the solution which it had is by no means strengthened by an exam- arrived at in Commission v Ireland for the ination of the Court's subsequent case-law. period in question, taking account of the Council's failure to act in that regard. In so doing, however, did not the Court implicitly acknowledge that, even though the Member States could adopt measures on the basis of 46. The judgment in Commission v national legislation so long as the Ireland,12 in which the Court refers to Community had not exercised its own Kramer in stating that powers in that area, those powers extended to the independent adoption of rules whose 30 — Isaac, G. : Droit communautaire général, Masson 1990, 3rd Ed., p. 95, emphasized by the author. 33 — Paragraph 63. 31 — Ibid., emphasis added. 34 — Judgment in Joined Cases 185 to 204/78 [1979] 32 — Judgment in Case 61/77 [1978] ECR 417. ECR 2345.

53. In reply to some of the questions which were put to it at the hearing and which 50. Besides, the crux of the matter in these revealed the inconsistency of that argument, proceedings had nothing to do with the the Spanish Government contended that geographical extent of the Community's independent authority to limit catches on powers in this area, but was concerned with the high seas cannot be vested in the the question whether the catch-monitoring Community, since the Member States, and system could be applied in connection with in any event Spain, did not previously have the management of fishery agreements with such authority. In other words, the developing countries outside the ambit of the Community has no internal powers in this area, since there were no powers that the 35 — Judgment in Joined Cases 6 and 7/88 [1989] ECR 3639; Opinion of Mr Advocate General Tesauro. Member States could have 'transferred' to 36 — Paragraph 23, emphasis added. it.

I - 3995

OPINION OF MR DARMON —CASE C-258/89

That, to my mind, is the 55. As the United Kingdom pointed out at conclusion which the Court will have to the hearing, the assertions of the Spanish draw. Government amount to challenging precisely a fundamental principle of public international law of the sea, namely the law of the flag. As regards, more particularly, fishing on the high seas, the principles of public international law are as follows: 57. Spain has also contended that a 'Apart from giving all States the right to fish unilateral limitation by the Community of and the right to authorize their nationals to fishing activities on the high seas would be make use of that right, the system which detrimental to its fishermen without being derives from the "freedom of the high seas" effective, since non-member countries corresponds to a division of powers between continue to leave complete freedom to their

T w o points in particular are worthy of attention. 56. Admittedly, the point has been made 39 — Ibid. that in practice States grant 'de facto 40 — Ibid., p. 942. 'In practice, this legal system of sharing powers has often given way to a de facto freedom for the 37 — Joined Cases 3, 4 and 6/76, tupra. individual operator. Sutes are reluctant to adopt effective rules on the conservation of stocks or measures for their 38 — Fleischer, C : 'La pêche' in Dupuy, R.-J. and Vignes, D.: implementation if those rules and those measures apply Traiti du Nouveau Droit de la Mer, Bruylant 1985, p. 942. only to their own vessels.'

59. T o begin with, fishery resources, that is 62. A final argument advanced by the fish stocks, may move naturally inside or Kingdom of Spain, which considers that the outside the demarcation line of the Act of Accession does not confer authority Community fishing zone. There is little on the Community to regulate fishing acti- doubt that limiting fishing activities to situ- vities outside Community waters, remains to ations where the stock is to be found inside be examined. According to the defendant, Community waters would hardly be that follows from the wording of Article 156 effective and would wholly undermine the of that Act, which states that: 'For the objectives of conserving the stock in purposes of their integration into the question, since it would be not be subject to Community system for the conservation and quota once it moved outside the 200-mile management of fishery resources established zone. by Regulation (EEC) No 170/83, access to the waters falling under the sovereignty or within the jurisdiction of the present Member States and covered by the Inter- national Council for the Exploration of the Sea (ICES) by vessels flying the flag of Spain and recorded and/or registered in a 60. Secondly, if the quota system were to port situated in the territory to which the apply only to catches made in territorial common fisheries policy applies shall be waters, the risk of fraud would be subject to the system defined in this section.' considerable. Catches inside the Community zone could thus be declared as having been made on the high seas, while the obvious difficulty of verifying the actual fishing ground would, at least with the technical 63. The Kingdom of Spain infers from that methods currently in use, preclude the provision that the TAC shares allocated to detection of false statements. Moreover, the Spain by Article 161 of the Act of Commission was not contradicted by the Accession, a provision included in the same Spanish Government when it referred in section as Article 156, can apply only inside that regard to the prospect that the entire the 200-mile limit where the ICES zones in system of limiting fishing activities, which respect of which a specific share has been forms the basis of the common policy of reserved for Spain are to be found. conservation and management of fishery resources, might collapse.

65. T h a t interpretation cannot be accepted, Member States of the Community of Ten. as shown by a detailed examination of the Next, and above all, Article 161 cannot be relevant section. regarded as subject to the same territorial scope as Article 156, since it expressly lays down quotas for Spain in zones VIIIC and IX, which are entirely outside the waters of the Member States of the Community of Ten. 66. It is appropriate to distinguish between If the allocation of resources is indisputably Articles 156 to 160 which govern access to organized for zones outside the waters of waters falling within the jurisdiction of the the Member States of the Community of Member States of the Community of Ten, Ten, that constitutes proof that the scope of and Article 161 which determines the TAC the system governing access to shares for species subject to TACs and waters — belonging to the Member States quotas allocated to Spain, which cannot, in of the Community of Ten and to the ICES my view, be regarded as being confined to zones — cannot be regarded as applying to the zones of those States. the allocation of quotas.

I - 3998

COMMISSION v SPAIN

71. Furthermore, by failing to take any Commission has alleged without being penal or administrative action against contradicted by the defendant actually has persons responsible for fishing vessels who led — to Spain exceeding its fishing quotas, did not declare landings or transhipments of and to Spanish fishing vessels making their catches, or who fished and landed or catches in zones in respect of which Spain transhipped catches made in zones where does not have a quota. Such conduct neces- Spain had no quotas, the Kingdom of Spain sarily entails a breach of Article 10(2) of has failed to comply with Article 1(2) in Regulation No 2057/82 and Article 11(2) of both of the regulations at issue. Regulation No 2241/87, which, as we have seen, require Member States provisionally to prohibit fishing with effect from the date on 72. Finally, the attitude of the Spanish which their vessels are deemed to have authorities may lead — and, as the exhausted the quota in question.

73. I therefore propose that the Court:

(1) declare that, by failing to apply the control measures laid down by Regulation (EEC) N o 2057/82, in particular Articles 1, 6 to 9 and 10 thereof, and by Regulation (EEC) N o 2241/87, in particular Articles 1, 5 to 9 and 11 thereof, to catches made outside the Community fishing zone of stocks or groups of stocks subject to a TAC or quota, the Kingdom of Spain has failed to fulfil its obligation under the Treaty;

(2) order the Kingdom of Spain to pay the costs.