C-135/92
ECLI:EU:C:1993:861
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FISKANO v COMMISSION
OPINION OF ADVOCATE GENERAL DARMON delivered on 27 October 1993 *
Mr President, ally (Article 2) and subject, as appropriate, to Members of the Court, the grant of fishing licences (Article 3).
1. The case before the Court today has the particular feature, which has not occurred 4. Each party was to ensure compliance with before to my knowledge, of concerning an the agreement by the vessels within its juris action for annulment brought by a national diction (Article 5(1)), and could take the nec of a non-member country against a letter of essary measures with respect to the vessels of the Commission addressed to the Swedish the other party to ensure compliance with its ambassador to the European Communities. provisions (Article 5(2)). This feature is enough to explain the Com mission's two objections of inadmissibility.
5. A procedure for consultation, and if nec 2. Before examining them, the factual and essary arbitration, was established to settle legal background to this action should be any dispute which might arise on the inter summarized, referring to the Report for the pretation or application of the agreement Hearing 1 for fuller details. (Article 7).
3. Under an agreement dated 21 March 1977 the European Economic Community and the Government of Sweden granted reciprocal 6. The agreement was approved by a Coun rights for their respective vessels in their cil Regulation of 27 June 1980, to which it 2 exclusive fishing areas (Article 1), limited was annexed. however to catch quotas determined annu
2 — Council Regulation (EEC) No 2209/80 of 27 June 1980 on the conclusion of the Agreement on fisheries between the * Original language: French. European Economic Community- and the Government of 1 — I — Legal background. Sweden (OJ 1980 L 226, p. 1).
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7. In a regulation of 20 December 1990, the Commission, which was rejected in a letter Council laid down the conditions to be of 5 May 1992. respected by Swedish vessels fishing within Community waters, the consequence of non compliance being withdrawal of the fishing licence for a maximum of 12 months.
11. The present application is directed against the letter of 19 February 1992.
8. On 10 December 1991 the Swedish fish ing vessel Lavön, owned by Fiskano AB, a company established under Swedish law, was the subject of a check by the Netherlands authorities (Algemene Inspectie Dienst), as a 12. As stated above, in my opinion the result of which it became apparent it was not Commission is putting forward two pleas of on the list of vessels with fishing licences. inadmissibility, which it does not distinguish. Those authorities informed the Commission, The first relates to the nature of the chal which confirmed that this was the case. lenged measure, the second to the require ment that there must be direct and individual concern to the applicant.
9. The Commission therefore wrote to the Swedish ambassador to the European Com munities on 19 February 1992 to inform him that the Lavön had been 'engaged in illegal 13. Before examining the first plea, it should fishing activity' and, in accordance with be noted, as far as formal criteria are con Article 3(7) and (8) of Regulation cerned, that in its decisions the Court has No 3929/90, would 'not be considered for a never accepted the way an act is described by new fishing licence' 4 for a period of 12 the institution whose act it is, but has instead months from 15 December 1991. carried out its own examination in order to determine its real character.
10. A copy of the letter was forwarded to Fiskano by the Swedish authorities. On 30 March 1990 Fiskano sent a complaint to the 14. Thus in the Fédération Charbonnière de Belgique v High Authority judgment, 5the Court held that a letter had to be seen as a decision in view of the fact that 3 — Council Regulation (EEC) No 3929/90 of 20 December 1990 laying down for 1991 certain measures for the conservation and management of fishery resources applicable to vessels flying the flag of Sweden (OJ 1990 L 378, p. 48). 4 — Annex I to the application. 5 — Case 8/55 [1954 to 1956] ECR 245.
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'The High Authority has thus unequivocally and were accordingly within the Court's determined the attitude which it had decided jurisdiction for interpretation. to take henceforth should the circumstances mentioned under point 2(d) of the letter arise.' 6
17. The Court further held in Opin 10 ion 1/75 that
15. Let it also be noted, again as a prelim inary point, that the fact that a letter derives from an international agreement does not 'The question whether the conclusion of a mean that it is not subject to examination given agreement is within the power of the and review by the Court. Community and whether, in a given case, such power has been exercised in conformity with the provisions of the Treaty is, in prin ciple, a question which may be submitted to the Court of Justice, either directly, under Article 169 or Article 173 of the Treaty, or in 16. Thus the Court held in the Haegeman accordance with the preliminary procedure, 7 judgment that an agreement concluded by and it must therefore be admitted that the the Council was matter may be referred to the Court in accordance with the preliminary procedure of Article 228.' 11
8 'an act of one of the institutions' 18. It is in the light of those statements that the Commission's argument must be exam ined, namely that the letter in question can not form the subject of an application by the applicant in that, being addressed to a non- with the effect that member country, it belonged to the sphere of relations between sovereign powers and con sequently could not be of direct and individ ual concern to the applicant. As an inter- State communication, it could not be classified as a 'decision', being merely a pro 'the provisions of the Agreement, from the posal for a penalty, originating from the coming into force thereof, form an integral Commission but whose disposal would be a 9 part of Community law' matter for the Swedish authorities exclu sively.
6 — P. 257. 7 — Case 181/73 [1974] ECR 449. 8 — Paragraph 4. 10 — [1975] ECR 1355. 9 — Paragraph 5. 11 — P. 1361.
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19. That argument can be refuted by an 23. On the contrary, this is an instance of interpretation of the relevant provisions of observance of the principle, well established the agreement and the regulations in force at in public international law, of territorial sov the time when the infringement was found to ereignty, in this case in the form of an exclu have taken place. sive fishing zone, a concept acknowledged by the Permanent Court of International Justice in the well known Lotus judgment 12 of 7 September 1927:
20. While the agreement provides in Art icle 5(1), as the Commission correctly states, that each party must ensure that its own ves sels comply with its provisions and those of the other regulations, it nevertheless remains '(...) the first and foremost restriction the case that neither the Community nor the imposed by international law upon a State is Kingdom of Sweden intended to abandon its that — failing the existence of a permissive jurisdiction with respect to compliance with rule to the contrary — it may not exercise its the relevant rules by the vessels of the other power in any form in the territory of party. another State'. 13
21. Article 5(2) provides indeed that: 24. Neither party intended to abandon its own jurisdiction within its territorial limits.
'Each Party may take within its area of fish eries jurisdiction such measures, in confor mity with international law, as may be neces sary to ensure compliance with the provisions of this Agreement by vessels of 25. This is the very concept adopted in Reg the other Party.' ulation (EEC) No 3929/90, Article 3(8) of which authorizes the Commission on behalf of the Community to refuse to issue a licence to Swedish vessels which infringe the regulation, without prejudice to its entitle ment under the second paragraph of Article 4 to 22. If a vessel fails to comply with such obli gations, either or both of the parties can impose a penalty on it without thereby encroaching upon the other party's sover 12 — Permanent Court of International Justice, Collection of Judgments, Series A No 10 (Judgment No 9). eignty. 13 — P. 18.
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'submit, on behalf of the Community, to 30. Reference should be made here to the Sweden the names and characteristics of the Court's judgment in Adams v Commis- Swedish vessels which will not be authorized sion, a case in which the applicant, who to fish in the Community's fishing zone the had been convicted in Switzerland for dis next month(s) as a consequence of an closing to the Commission confidential infringement of Community rules'. information on anti-competitive practices by the Hoffmann-La Roche company, com plained that the Commission had not referred the matter to the Joint Committee set up under the Free Trade Agreement between the Community and Switzerland.
26. The regulation, in conformity with the agreement, thus authorizes the Commission either to withdraw or refuse a fishing licence to a vessel which has infringed one of its provisions, or merely to propose to Sweden that such a penalty be inflicted. 31. The Court held that
27. However, might it not be open to Swe den, within the framework of the agreement, 'the decision whether or not to refer the to challenge that 'decision', given that a con matter to the Joint Committee may not be sultation and arbitration procedure is pro taken except for purposes which have to do vided for 'in the event of a dispute concern exclusively with general interests of the ing the interpretation or application of this Community, following an assessment which Agreement'? 14 is essentially political and which cannot be challenged before the Court by an indi 17 vidual'.
28. The Commission considers that that provision is not intended to 'apply to the 15 day-to-day management of the agreement'. 32. Similarly, the procedure referred to in Article 7 is not intended to be applied to the consequences of an individual decision, but solely to settle possible disputes which may arise directly between the parties, for exam ple on the conservation of fishery resources 29. I agree. (methods of fishing) or protected zones.
14 — Article 7(2). 16 — Case 53/84 [1985] ECR 3595. 15 — Paragraph 10 of the reply. 17 — Paragraph 15, my emphasis.
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33. Since the Community was authorized to 36. Moreover, this is how the Swedish Gov refuse to consider the Lavön for the grant of ernment appears to have analysed the letter, a licence, it must therefore be examined simply passing a copy on to the applicant. firstly whether the letter in this case was a decision within the meaning of the second paragraph of Article 173, and secondly whether it was of direct and individual con cern to the applicant, despite being addressed to the Kingdom of Sweden. 37. Given that it is a decision, can the appli cant claim to be directly and individually concerned?
34. The Commission argued in its written pleadings and at the hearing that the letter could not be interpreted as prohibiting the issue of a licence, but merely as proposing that a licence should be refused, so that it could not be regarded 38. According to the Commission, even before the letter in question was sent, the Swedish authorities had already decided that the Lavön would not be issued a fishing licence for 1992, since it did not appear on the annual list, transmitted on 17 Janu 'as a measure emanating from the competent ary 1992, of vessels flying the Swedish flag authority, intended to produce legal effects for which the authorities had requested and constituting the culmination of proce licences for that year. dure within that authority, whereby the lat ter gives its final ruling in a form from which 18 its nature can be identified'.
39. In the Commission's opinion, it was 35. It must be stated, however, that the therefore the refusal of the Swedish authori actual wording of the letter does not allow ties to include the vessel on the annual list the Swedish authorities any discretion, but which adversely affected the applicant and simply informs them that issue of a licence not the Commission's decision, so that the to the Lavön has been suspended for 12 measure it seeks to have annulled was not of months. It is therefore, as indeed is shown direct concern to it. by the express reference in the letter itself, a measure taken under paragraphs 7 and 8 of Article 3, not a proposal made under the sec ond paragraph of Article 4.
18 — Judgment in Case 54/65 Compagnie des Forges de Châtillon 40. The Court's case-law in this respect v High Authority [1966] ECR 185, at p. 195. states that such an application is admissible if
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the applicant has an interest in obtaining the whereas the monthly list contains a formal annulment of the contested measure. 9 request for licences ('Swedish vessels apply- 23 ing for permission to fish').
41. It is therefore for the Commission to show that the annual list is definitive and completely excludes the possibility that a vessel not originally included may subse quently be granted one or more monthly 44. It follows that the letter at issue could licences. The Commission's mere assertions have adversely affected the applicant by on this point find no support in the agree depriving it at the very least of the chance of ment or the regulation. being included on the list.
42. Moreover, the agreed record of conclu sions of consultations between the Commu 20 nity and Sweden, on arrangementsto be made for licences for 1991, states that 're quests for amendments to the basic lists may 45. Since the Swedish authorities had no dis be made at any time and shall be processed cretion with respect to the Commission's expeditiously' (paragraph 2, second subpara decision, the applicant was directly con graph, second sentence). I have likewise cerned. ascertained in this respect that the vessel GG 229 Bristol appears for the first time on the list for area IV for December 1991, but is not 21 on the annual list for 1991.
46. As to the concept of 'individual con cern', the Court gave the following defini 24 tion in the PUumann judgment: 43. Finally, the very title of the base list does not permit the assertion that it is unalterable; it reads:
'Persons other than those to whom a deci sion is addressed may only claim to be indi 'The base lists of Swedish vessels intending vidually concerned if that decision affects 22 to fish in Community waters in 1992', them by reason of certain attributes which are peculiar to them or by reason of circum stances in which they are differentiated from 19 — See the judgment in Case 77/77 B. P. v Commission [1978] ECR 1513, at paragraph 13. 20 — Annex to the rejoinder. 21 — Annexes 1 and 2 to the defence. 23 — Annex 8 to the defence, my emphasis. 22 — Annex 6 to the defence, my emphasis. 24 — Case 25/62 Plaumann v Commission [1963] ECR 95.
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all other persons and by virtue of these fac 51. During the oral procedure the applicant tors distinguishes them individually just as in argued that there had been a wrong reference the case of the person addressed.' in the letter at issue, which had prevented it from raising the plea at the outset, at the application stage.
47. It suffices to note that the decision con cerns the Lavon to the exclusion of all other vessels. 52. This argument fails to convince.
48. Consequently, I propose that the Court 53. To be sure, the refusal of a fishing licence dismiss the objection of inadmissibility. is founded in the letter in question on Regu lation (EEC) No 3939/90, not No 3929/90.
49. At the reply stage the applicant raised a 54. That wrong number cannot, however, be plea of illegality, arguing that the Council considered as having prevented the applicant had not been competent to adopt Regulation from raising the plea of illegality at the out (EEC) No 3929/90, in that it prescribed a set, especially as the precise reference to the penalty, and that it had violated the Treaty date and publication number of the Official by delegating to the Commission the power Journal of the European Communities was to impose that penalty. sufficient to allow a reasonably diligent eco nomic agent to ascertain the content of the regulation.
50. The Commission argues that the plea should be rejected under Article 42(2) of the Rules of Procedure, which states that no new 55. Moreover, the letter refers to the later pleas in law may be introduced in the course Regulation No 3885/91 (OJ 1991 L 367, of the proceedings unless they are 'based on p. 48), which is virtually identical to the pre matters of law or fact which come to light in vious one, apart from the year of application the course of the procedure'. and the quotas allotted. The possibility of a prohibition under Article 3(7) and (8) is repeated in identical terms. Furthermore, 25 — P. 107. Fiskano refers to the later regulation in its
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application without raising any plea of ille that it has no cause to know why that State gality in this respect. has put forward one vessel rather than another for the grant of a monthly licence.
56. The plea of illegality must consequently be declared inadmissible. 61. The case is different, however, with respect to decisions originating from the Commission itself.
57. I turn to the substance of the case.
62. According to the Court's case-law,
58. The applicant alleges infringements by the Commission of the right to a fair hearing and the principle of proportionality, and the failure to state reasons for the contested decision. '... when any administrative body adopts a measure which is liable gravely to prejudice the interests of an individual it is bound to put him in a position to express his point of 26 view' 59. But before examining those points it should be noted that under the agreement the parties each have distinct areas of compe tence. Sweden, exercising a discretionary power, draws up the list of vessels in respect of which it seeks licences to fish in Commu and nity waters, and the Commission then issues the licences, without having the right to inspect the vessels suggested, provided it has not barred them for breaching the agreement or the regulations.
'observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle 60. As the Commission rightly states, it is not for the Commission to examine how Sweden distributes the licences, that being 26 — Judgment in Case 121/76 Moli v Commission [1977] within Swedish sovereignty, with the result ECR 1971, at paragraph 20.
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of Community law which must be guaran vations on the complaints before the decision teed even in the absence of specific rules'. at issue was adopted.
63. So general a principle, whose existence was affirmed inter alia in the Hoffman-La 67. However, I do not suggest that the 28 Roche judgment, cannot vary in scope Court should annul the decision on those according to the nature of the decision being grounds, since examined by the Court, in that it represents a minimum standard which cannot therefore be subdivided according to the specific nature of the procedure being followed.
'For such an infringement of the right to be heard to result in an annulment it must, however, be established that, had it not been 64. The Commission does not dispute that it for that irregularity, the outcome of the pro did not give the applicant a hearing before 29 cedure might have been different.' adopting the contested decision; it justifies this 'omission' by the international character of the agreement between the Kingdom of Sweden and the Community.
68. Without requiring Fiskano to prove that it held a licence when the infringement was found to have occurred, a certificate from the 65. A like argument has already been exam competent Swedish authorities on the grant ined in connection with admissibility. I will of a licence for the month in question could therefore merely repeat that, this being a have been taken into consideration. measure taken by a Community institution and intended to have legal consequences for the applicant, it was necessary to respect all guarantees, including procedural ones.
69. Fiskano has not produced such a docu ment, claiming merely that since it had been authorized to fish in Community waters at 66. That was not so in the present case, since the beginning of 1990, the Commission was Fiskano was not in a position to make obser under 'a special duty of care to obtain the 30 information'.
27 — Judgment in Case C-142/87 Belgium v Commission [1990] ECR I-959, at paragraph 46. 28 — Judgment in Case 85/76 Hoffman-La Roche v Commission 29 — Belgium v Commission, cited above, at paragraph 48. [1979] ECR 461, at paragraph 14. 30 — Page 7 of the reply.
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70. Such an argument is not sufficient, since 74. Regulation (EEC) No 3929/90 imposes the applicant does not state any factor which, various obligations on Swedish vessels fish if known, could have induced the Commis ing in Community waters: they must keep a 32 sion to take a different decision. log book, transmit certain information to 33 the Commission, ... and must hold a fish 34 ing licence.
71. Consequently, I suggest that the Court 75. Failure to comply with any of these obli reject this plea. gations means that the licence is withdrawn or that a licence cannot be issued 'for a 35 period not exceeding 12 months'.
72. As to the principle of proportionality, 76. Since the infringement committed was the Court's case-law requires that the pen the most serious one under the provisions of alty for failing to comply with a Community the regulation, the Commission was able in obligation should not exceed the present case to refuse the applicant a licence for the period in question, without there being a breach of the principle of pro portionality.
'what is appropriate and necessary to attain 31 the objective sought'. 77. Finally, with reference to the reasons stated in the letter at issue, it suffices to note that by stating that
73. It must therefore be determined whether 'the said vessel was not in possession of a the infringement could legitimately be penal licence to fish in EEC waters during the (...) ized by a prohibition on receiving a fishing licence for one year.
32 — Article 2(2). 33 — Article 2(3). 34 — Article 3(1). 31 — Judgment in Case 122/78 Buitoni v Forma [1979] ECR 677, at paragraph 16. 35 — Article 3(8).
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period and consequently was engaged in 'the Court to review its legality and [provid illegal fishing activity', ing] the undertaking concerned with the information necessary to enable it to ascer tain whether or not the decision is well 36 founded'. the Commission gave a sufficient statement of reasons for its decision, consequently 78. Since Fiskano has failed in this last plea, allowing its application must be dismissed.
79. I therefore propose that the Court:
(1) declare admissible the application brought by Fiskano AB against the Com mission's decision of 19 February 1992;
(2) declare inadmissible the plea of illegality brought at the reply stage against Council Regulation (EEC) No 3929/90 of 20 December 1990 laying down for 1991 certain measures for the conservation and management of fishery resources applicable to vessels flying the flag of Sweden;
(3) dismiss the application;
(4) order Fiskano to pay the costs.
36 — Judgment in Joined Cases 296 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, at paragraph 19.
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