C-52/91

OPINION OF MR LENZ — CASE C-52/91

OPINION OF ADVOCATE GENERAL LENZ delivered on 10 March 1993 *

Mr President, 3. The Commission claims that the Court Members of the Court, should:

— declare, pursuant to the second paragraph of Article 169 of the EEC Treaty, that, by A — Introduction exceeding the fishing quotas allocated to it for 1986, the Kingdom of the Nether­ lands has failed to fulfil its obligations under the combined provisions of Article 10(2) of Council Regulation (EEC) No 2057/82 and of Regulation (EEC) No 1. In this action against the Kingdom of the 2374/86; Netherlands for failure to fulfil Treaty obli­ gations, the Commission seeks a declaration that the breach of several fishing quotas in 1986 is attributable to breaches by the defen­ — order the Kingdom of the Netherlands to dant Member State of its duty of care in the pay the costs. management of the quotas, particularly in the choice of dates for the prohibition of fishing. The Kingdom of the Netherlands contends that the Court should:

2. A similar case relating to fishing activities — dismiss the Commission's application; in 1983, 1984 and 1985 has already been and heard and decided by the Court. 1 In the meantime the Commission brought two fur­ ther actions for failure to fulfil Treaty obliga­ — order the Commission to pay the costs. tions against the French Republic which also related to the Member States' obligations, in the widest sense, in the management of fish­ 2 ing quotas. 4. Reference is made to the Report for the Hearing for the facts of the case, the legal framework and the parties' submissions. The * Original language: German. facts and the parties' submissions are herein­ 1 — Case 290/87 Commission v Netherlands [1989] ECR 3083. after reproduced only where necessary to 2 — Case C-62/89 Commission v France [1990] ECR 1-925, and Case C-244/89 Commission v France [1991] ECR I-163. this Opinion.

8. Regulation No 2374/86 which is cited in 5. At the hearing the Member State's repre­ the application refers in its title unmistakably sentative claimed that the application was to the basic regulation. The full title is as fol­ unclear and therefore inadmissible. Regu­ lows: 3 lation (EEC) No 2374/86 was only a regu­ lation amending Regulation (EEC) No 4 3721/85, which fixed a herring quota for fishing grounds in the Skagerrak and the 'Council Regulation (EEC) No 2374/86 of Kattegat, which did not affect the defendant 24 July 1986 amending for the fourth time Member State. Regulation (EEC) No 3721/85 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1986 and cer­ tain conditions under which they may be 6. The Commission replied that its com­ fished.' plaint related to an infringement of Article 5 10(2) of Regulation No 2057/82. In addi­ tion, the objection had been lodged out of time. The documents exchanged in the pre- litigation procedure and the grounds of the application show beyond doubt that they are 7. Apart from the question whether the intended to refer to the basic regulation as objection raised at the hearing is a 'new plea last amended. in law' within the meaning of Article 42(2) of the Rules of Procedure which is out of 6 time and must therefore be dismissed, it should be observed that the Court examines 9. However, these considerations are to no purpose if the Commission validly restricted the terms of its application in the course of the hearing. In principle the Commission is 3 — Council Regulation (EEC) No 2374/86 of 24 July 1986 amending for the fourth time Regulation (EEC) No free to withdraw individual complaints in the 3721/85 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1986 and certain con­ course of the procedure, which in the present ditions under which they may be fished (OJ 1986 L 206, case was also done in another connection. p. 4). 4 — Council Regulation (EEC) No 3721/85 of 20 December 1985 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1986 and certain conditions under which they may be fished (OJ 1985 L 361, p. 5). 5 — Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activi­ 10. As the Commission representative ties by vessels of the Member States (OJ 1982 L 220, p. 1). expressly pointed out that the only com­ 6 — See Case 11/81 Duberck v Commission [1982] ECR 1251, paragraphs 14 and 19. plaint now concerns the infringement of

Article 10(2) of Regulation No 2057/82, it (b)The subject-matter of the dispute remains to be established whether the appli­ cation, as amended in this form, meets the requirements of certainty. Without the refer­ ence to Regulation No 2374/86, the form of the order sought is worded as follows: 13. The subject-matter of the dispute was amended or restricted several times, in both the legal and the factual respects, between the initiation, by means of the letter of for­ 'The Commission claims that the Court mal notice of 2 October 1986, of the pro­ should: cedure for failure to fulfil obligations and the date of the hearing. Consequently it is appropriate to define the subject-matter as it appears at the date of the hearing and there­ — declare, pursuant to the second paragraph fore constitutes the basis for the judgment. of Article 169 of the EEC Treaty, that, by exceeding the fishing quotas allocated to it for 1986, the Kingdom of the Nether­ lands has failed to fulfil its obligations under Article 10(2) of Council Regu­ lation (EEC) No 2057/82; ...'. 14. According to the letter of formal notice of 2 October 1986 and the more detailed let­ ter of 13 May 1987, the complaint was that Articles 1, 2 and 3 of Regulation No 3721/85, as last amended by Regulation No 11. The application ought to be capable of 2374/86, Article 5(2) of Regulation No forming the basis of a judgment if it can be 7 170/83 and Article 10 of Regulation No found that the relevant requirements are ful­ 2057/82 had been contravened by the fact filled. That that is indeed the case may easily that the fishing quotas allocated to the King­ be seen from a comparison with paragraph dom of the Netherlands had been exceeded 1 of the operative part of the judgment in in 14 cases and that there had been 12 cases Case 290/87, which reads as follows: of fishing of stocks for which a quota had not been allocated because fishing was in any case prohibited there, the so-called 'zero quotas'. '... by not deciding in good time to prohibit fishing for certain stocks in 1985, the King­ dom of the Netherlands has failed to fulfil its obligations under Article 10(2) of Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures 15. In the reasoned opinion of 21 November for fishing activities by vessels of the Mem­ 1988 the Commission did not pursue the ber States.' claim that the quotas had been exceeded in two cases. After the procedure was sus­ pended and then resumed as a result of the

21. As the Commission has limited the form of the order it seeks so as to refer only to an 17. As part of the application, a list was pro­ infringement of Article 10(2) of Regulation duced to the Court showing 12 cases in No 2057/82, I presume that the disregard of which quotas had been exceeded, and it was 'zero quotas' is no longer at issue in these alleged that in ten cases a provisional prohi­ proceedings. bition of fishing pursuant to Article 10(2) of Regulation No 2057/82 had not been ordered, and in the other two cases had been ordered only at a late stage. 22. That interpretation may also be put upon the remark by the Commission repre­ sentative that any lapses within the area of the Member State's responsibility with regard to the fishing of 'zero quotas' were 18. As a result of the defendant Govern­ not on the agenda in this action. ment's submissions, in the course of the written procedure the Commission amended its complaints to the effect that the provi­ sional prohibitions had been ordered too late 23. It therefore remains to consider the in all 12 cases and that, save in two cases, the breach of catch quotas in 11 cases. With Commission had not been notified of them. regard to the accompanying factual circum­ In the reply the Commission did not pursue stances, in the course of the written pro­ the claim concerning the breach of the quota cedure the parties engaged in a discussion of in one case, so that, in all, 11 cases of exceed­ each case. The following table is intended to ing quotas now form the subject-matter of give a summary of the sometimes conflicting the dispute. arguments concerning the 11 cases of exceed­ ing quotas which form the subject-matter of 8 the action.

3 Mackerel Ha 14. 10. 15. 10. 1 200 1 949 Sept: 919 11 Sept: = 47 % (EC)IIIa, IIIb, a, c, d Oct: 1 746

4 Mackerel II; Vb 4. 6. 4. 6. 31 170 58 854 March: 41 069 Mid-June: 22 271 (EC);VI;VII; May: 51 312 = 72% VIII (EC); XII

5 Sole Ilia; 27. 5. 19. 4. 50 111 Febr: 41 10 Febr: 30 IIIb, c, d (EC) March: 62 = 60%

6 Plaice Ilia 16. 8. 15. 8. 2 170 3 907 May: 1 862 (Skagerrak) June: 2 752

7 Haddock 12. 7. 5. 7. 10 35 April: 5 15 May: 5 Ilia; Illb, c, d (EC) May: 16 = 50% 15 June: 110%

8 Sole VIII 27. 5. 5. 4. 105 213 March: 213 15 March: 0 May: 18 March: 161

24. It is common ground between the parties that quotas were exceeded in 1986, in some 26. That provision involves various different cases substantially. The only matter at issue obligations. First, the date from which the is whether the defendant Member State is quota is deemed to have been exhausted responsible for the quotas having been must be fixed. As I pointed out in my Opin­ exceeded because duties in Community law ion in Case 290/87, the exhaustion of the regarding quota management were not ful­ quota is a fiction because the decision must filled or whether the breaches of quotas are be taken before the actual exhaustion of attributable to circumstances beyond the catch quotas, otherwise it cannot fulfil the control and outside the area of responsibility aim and purpose of the provision. The of the Member State. decision must not be based solely on catches already registered, but must be governed also by estimates of catches not yet registered, expected catches and catches landed in other Member States.

25. According to the amended form of order sought, the only provision by which the Member State's conduct must be appraised is Article 10(2) of Regulation No 2057/82, which reads as follows: 27. The Member State imposes a provisional prohibition of fishing in direct conjunction with the fixing of the date on which the quota is exhausted. The prohibition must be 9 binding.

30. The Court has repeatedly held that a 33. The information produced to the Court Member State must take in good time the permits the conclusion that in most cases necessary measures to prevent a quota from fishing was prohibited too late. That may be 10 being exceeded. Consequently it is wrong attributable to the fact that the requisite to wait until the quota is almost exhausted information reached the competent authority before taking a decision. As already indi­ too late, although that cannot justify, the cated, the decision must allow for pending delay. registration and the notification of catches already made, as well as the catches still to be expected before the prohibition is published and takes effect. Finally, estimates of catches landed in other Member States, which are to be charged to the quota, must also be 34. A comparison of the figures under head­ included in the decision-making process. ings 1, 7 and 10 of the table compiled for the purpose of this Opinion shows that the catch quantities given by the Commission for the end of a month are shown by the Nether­ lands Government as the registration figures for the middle of the following month. The 31. According to the Netherlands Govern­ time lag is manifest because the figures are ment's arguments in the procedure, these identical in the categories concerned. factors are taken into account. However, the fact that there was nevertheless overfishing, which was in some cases quite substantial, gives rise to doubt as to whether these fac­ tors were actually taken into account and, if so, in an appropriate form. 35. It appears from the submissions of the Netherlands Government that it assigned to a body governed by public law, the Produktschap voor Vis en Visprodukten, the duty of registering catches. In principle the registered particulars of catches are transmit­ 32. Article 10(2) of Regulation No 2057/82 ted to the competent ministry once a month, does not lay down an obligation to achieve a normally on the 15th of the month for the preceding month. This once-monthly notifi­ cation of existing catches, which is further­ 10 — Case 290/87, ibid., Case C-62/89, ibid., at paragraph 17. more affected by a time lag of at least two

40. To ensure the reliable management of 37. Once again, a look at the table, in con­ quotas, a Member State has an obligation to junction with the uncontested submissions take its decision on the basis of up-to-date of the parties, shows that these delays are figures. It cannot fall back on the excuse that clearly too long. According to the Commis­ registration is carried out by a public institu­ sion's figures, the total catch for Category tion which forwards the relevant information 1 registered at the end of October was only once a month. 4 763 tonnes and at the end of November 8 314 tonnes. That would mean that approx­ imately 3 500 tonnes of fish were caught in one month, which amounts to more than half the entire quota. 41. During the proceedings the Netherlands Government argued that information was supplied more frequently if a quota appeared likely to become exhausted. In reply to a written question from the Court and further 38. The situation is similar with regard to questioning at the hearing, the Netherlands Category 2, for which, according to the Government was unable to show that there Commission's figures, 16 310 tonnes were was a legal obligation to provide that infor­ registered at the end of October and mation more frequently. To say that an 22 277 tonnes at the end of November. That administrative practice exists is not sufficient would mean that the total catch for the to remove doubts regarding the proper fulfil­ month in which the quota was likely to be ment of obligations. In the first place, assum­ exhausted was approximately 6 000 tonnes. ing that the said practice does exist, the nec­ Even according to the figures of the Nether­ essary results were not obtained. Secondly, lands Government itself, which had regis­ an administrative practice may be altered at tered 16 264 tonnes on 13 November and any rime, which is contrary to the principle

43. The Court stated in Case C-244/89 that the period of 15 days for the notification of monthly catch figures to the Commission cannot in any case serve as an excuse for a Member State's failure to discharge its obli­ 46. One must concur with the Netherlands gation to take the measures necessary provi­ Government's argument in its defence that it sionally to prohibit any fishing activity as cannot be held responsible for breaches of soon as exhaustion of the quota appears quota in previous years in so far as the pre­ 1 imminent. 1The Court also observed that a vious cases cannot have a direct causal con­ Member State may require the necessary nection with the present overfishing. How­ information to be communicated more rap­ ever, it cannot be denied that substantial idly, for example by radio. 12 breaches of quotas in the past are a signifi­ cant pointer which compels the Member State to exercise greater vigilance.

44. In the final analysis, it is a matter for the Member State to decide how the registration of catches and the provision of information are organized. However, it is necessary to 47. I should like to illustrate the obligations ensure that the requisite decisions are made of Member States in this field by the follow­ in good time on the basis of up-to-date fig­ ing example. ures, which was not done in most of the 11 cases of breaches of quota which are the subject-matter of these proceedings.

11 — Case C-244/89, at paragraph 30. The quotas allocated to the Member States 12 — Case C-244/89, ibid., at paragraphs 21 and 30. correspond to bank accounts for a certain

amount. The Member State to which the means that 92% of the quota had been quotas are allocated is responsible for man­ exhausted, on the basis of which the closure aging the accounts. It is responsible to the of fishing was planned for the end of Community for ensuring that the account November. (the quota) is not overdrawn. In this connec­ tion it must exercise the care of a responsible businessman. While there is a large sum in the account, it may be sufficient to check the 51. However, it now appears from the Com­ balance once a month. However, as the mission's arguments that the total catch of account nears exhaustion, the account-holder 4 763 tonnes had already been reached at the must check it so often as to be able to freeze end of October, so that the figures produced it before it becomes overdrawn. Whatever to the Court presumably reflect a consider­ happens, he must prevent an overdraft able delay in the transmission of the quanti­ because the amount overdrawn is lost irre­ ties caught. The closure of fishing was trievably. The account-holder must take par­ ordered after the Commission had sent a ticular care if overdrafts have occurred previ­ telex message to the Netherlands Govern­ ously. ment on 20 November informing it that the quota was exhausted. The fact that the Com­ mission has to inform the Member State of the catches in its territory demonstrates that there are considerable shortcomings in the internal information system. 48. Measured by this criterion, the govern­ ment of the defendant Member State has not adequately fulfilled its obligation to check the situation. 52. The situation is similar with regard to Category 3, for which, according to the Netherlands Government's figures, only 47% of the quota had been exhausted by 11 September although once again the Com­ 49. After this general description of the pos­ mission informed it by telex on 8 October ition with the regard to the Member State's that the quota had been exceeded. obligations, it is necessary to examine one by one the arguments put forward by the Neth­ erlands Government in its defence with regard to the various breaches of quota. 53. The Netherlands Government's argu­ ments concerning Category 2 seem to imply careful management of the quota. Accord­ ingly, 16 264 tonnes of cod had been regis­ tered by 13 November, whereupon a 50. The figures produced by the Nether­ decision on the closure of fishing was taken lands Government relating to Category 1 in on 14 November, and came into force on the table do not in fact show that there was a 18 November, for fishermen also catching delay in taking the decision to prohibit fish­ fish other than cod. Then the decision to ing. 242 tonnes of herring were caught in prohibit fishing for all fishermen was taken September, which amounts to 4% of the on 21 November and came into force on quota, and in October 662 tonnes, which 25 November. According to the Netherlands amounts to 13% thereof. On 13 November Government, at the end of November only 4 763 tonnes had been registered, which 97% of the quota had been used up with a

54. The Netherlands Government's argu­ 57. The figures produced by the Nether­ ments concerning the mackerel catch in Cat­ lands Government for Categories 7, 8 and egory 4 do not show that it failed in its obli­ 9 show that fishing was prohibited too late. gations. It states that enquiries were made In these cases the reason was once again no from June concerning incorrect figures for doubt the delay in transmitting the figures. catches. The decision to prohibit fishing was In Category 8 a catch exceeding the quota taken on 2 June and came into force on was apparently reached within two weeks. In 4 June. The figures produced by the Nether­ this connection reference may be made to lands Government cannot be reconciled in the judgment in Case C-244/89, in which the any way with those of the Commission. Court observes in substance 13 that the large capacity of the Member State's fishing ves­ sels was a factor which required its authori­ ties to be all the more vigilant, but not one which in any way diminished their obliga­ 55. Regarding catches in Category 5, the tion to ensure the observance of quotas. Netherlands Government states that fishing was provisionally prohibited from 12 Febru­ ary to 1 May because it was assumed that the 58. Regarding catches of whiting in Cate­ data relating to the location of the catches gory 11, the Netherlands Government con­ were wrong. According to the Commission's tends that there were frequent quota figures, however, it was precisely during this exchanges of this stock. The initial quota was period that the quotas must have been 7 760 tonnes and in December it finally exceeded. In these circumstances, the docu­ became 12 422 tonnes. In connection with ments do not make it possible to decide what the problem of a quota exchange as justifica­ caused the quotas to be exceeded. tion for the continued authorization of fish­ ing, I should like to refer to the judgment in 14 Case C-62/89, which includes the follow­ ing passage:

since if the attempt to increase the quota by orders the definitive prohibitions more or means of an exchange fails or the quantities less simultaneously. The decisions concern­ obtained are insufficient to cover the catches ing the provisional closure of fishing in Cat­ made, any delay in the provisional closure of egories 5, 7, 8 and 9 were adopted several fishing is likely to aggravate the extent to days, or even weeks, before the Commis­ which the quota is exceeded. It follows that sion's decision, so that the Member State had any agreement for the exchange of quotas no reason for believing that its notification concluded with another Member State for would be superfluous. the purpose of increasing a quota must take place either before the exhaustion of the ini­ tial quota or after the provisional prohibition 60. The defendant Member State notified the of fishing.' Commission only of the measures relating to Categories 1 and 2. Therefore, by omitting to inform the Commission in the other cases, 59. Finally, it is necessary to consider the the Member State has failed to fulfil its obli­ complaint that the Commission was not gations. notified of the provisional prohibition of fishing. That obligation is laid down in the last sentence of Article 10(2) of Regulation Costs No 2057/82. The purpose of notification is to enable the Commission to transmit the necessary information to other Member 61. As the Commission is substantially suc­ States and in turn to order the definitive pro­ cessful in its claim, the defendant Member hibitions. Therefore the Member State has in State must be ordered to pay the costs pur­ any case an obligation to inform the Com­ suant to Article 69(2) of the Rules of Pro­ mission of its decisions, even if the latter cedure.