C-179/95

2. Spain, which holds catch quotas for both the abovementioned fishing zones, claims that there has been a failure to observe the objectives of the common fisheries policy (optimum utilisation of the factors of production and stability of the market), Β — Facts and relevant legislation set out in Article 39 of the EC Treaty, and a breach of the principles (rational and responsible exploitation of resources and relative stability) referred to in Regulation (EEC) No 3760/92 1 since the exchange involved different stocks in non-adjacent 4. There are two different stocks of zones. Such an exchange, it claims, is anchovy in Community waters, for which total allowable catches (hereinafter: TACs 2 ) and catch quotas are fixed. Those stocks * Original language: German. 1 — Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1). 2 — Footnote redundant in the English version.

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are situated in ICES Zone VIII and Zones of fishing activities for each of the stocks IX and X, CECAF 34.1.1. concerned ....'

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8. With regard to the possible exchange of possibilities allocated to them under the fishing availabilities once the fishing oppor- conditions referred to in Annex IV point 1. tunities have been established, Article 9 provides that 'Member States may, after notifying the Commission, exchange all or part of the fishing availabilities allocated to them'.

Point 1.1 of Annex IV states as follows:

9. Regulation (EEC) No 3362/94 5 fixed, in Annex I, the TACs for 1995 by stock or group of stocks. It thus laid down, for 'Exchanges between France and Portugal Zone VIII, a precautionary TAC of will be tacitly renewable for the period 33 000 tonnes, of which 29 700 tonnes 1995 to 2002, subject to the possibility of were allocated to Spain and 3 300 tonnes annual amendment of the conditions to France. For Zones IX and X, CECAF thereof by each Member State at the time 34.1.1, it fixed a precautionary TAC of 12 of the annual fixing of TACs and quotas. 000 tonnes, of which 5 740 tonnes were allocated to Spain and 6 260 tonnes to Portugal. These last-mentioned quotas were to be fished only in the waters under the sovereignty or within the jurisdiction of the Member State concerned or in interna- tional waters of the zone concerned. Exchanges concern the following TACs:

(i) a common TAC for anchovy being 10. On 27 March 1995, in order to ensure fixed for ICES areas VIII and IX, the 'management of the fishing effort 80% of Portugal's fishing possibilities relating to certain Community fishing areas will be transferred every year to and resources', the Council adopted Reg- France. Quantities must be fished ulation (EC) No 685/95. 6 Article 11(1) exclusively in waters under the sover- provides that, in accordance with Article 9 eignty or jurisdiction of France; of Regulation No 3760/92, the Member States concerned may exchange fishing

11. By Regulation (EC) No 746/95, 7 the of the factors of production nor the stabi- Council again fixed a precautionary TAC lity of the market is being pursued by for Zones IX and X, CECAF 34.1.1. means of the contested provisions. There is Initially, therefore, the TAC of 12 000 thus a failure to observe the objectives of tonnes remains applicable, with 5 740 the common fisheries policy set out in tonnes continuing to be allocated to Spain. Article 39 of the EC Treaty. However, of the 6 260 tonnes allocated to Portugal, up to 5 008 tonnes may be fished in waters of ICES Zone VIII under the sovereignty or within the jurisdiction of France. 15. In addition, it argues that, since there exist two independent stocks of anchovy, the TAC fixed for 1995 in Zone VIII is being increased, without any scientific basis whatsoever, by means of the contested 12. It can thus be stated in summary that, provisions. That is in breach of the objec- for both zones, different TACs and quotas tive of Regulation No 3760/92, which lies had been fixed initially, these being shared in a rational and responsible exploitation of between Spain and France in Zone VIII and resources. A species of anchovy is even between Spain and Portugal in the other being overexploited by means of the con- zone. The last-mentioned regulation now tested provisions. allowed Portugal to fish part of its TAC from Zones IX and X, CECAF 34.1.1 in French waters of ICES Zone VIII. However, Portugal transferred that quota to France. 16. It further argues that, in so far as the amount by which the quota of anchovy in Zone VIII has been amended, that is, 5 008 13. Spain's present action is directed tonnes, is awarded entirely to Portugal, the against those lines of conduct. principle of relative stability is being infringed. Portugal has never had a quota in that zone, with the result that the award of a quota is in breach of the requirement to maintain the fixed percentage for each of 14. The Spanish Government complains, the Member States which share the alloca- first, that, by allowing part of the quota of tion of that stock. anchovy which had been allocated to Portugal in Zone IX to be fished not in that zone but in Zone VIII, the TAC fixed for Zone VIII is being increased from 33 000 tonnes to 38 008 tonnes, without 17. The Spanish Government claims that there being any new scientific data to the Court should: justify it. Neither the optimum utilisation

— order the defendant institution to pay the costs. 19. The Spanish Government claims, first, that the TAC of 33 000 tonnes originally fixed for Zone VIII was adopted on the basis of scientific data and was regarded by the Council as the appropriate TAC to The Council contends that the Court ensure a rational and responsible exploita- should: tion of resources. Moreover, that TAC has undergone only insignificant fluctuations since Spain's accession and corresponds to an average of the catches made in the 1970s. Previous trends were thus taken into account and a sustainable exploitation — dismiss the action, ensured. If the Council now amends that TAC de facto from 33 000 tonnes to 38 008 tonnes, it will be breaking the continuity of the previous arrangements without having been persuaded of the need to do so by new scientific data. The and Council's existing discretion when adopting provisions under the common fisheries policy must also keep within the limits set by the Treaty. However, if (as in this case) an exchange of quotas for different species in different fishing zones is now allowed, — order the applicant to pay the costs. that is in breach of the objectives set out in

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8 — Judgments in Case C-280/93 Germany v Council [1994] ECR I-4973, 5057, at paragraph 47, Case C-311/90 Hierl [19921 ECR I-2061, at paragraph 13, and Case C-405/92 Mondiet [1993] ECR I-6133, at paragraph 51. 22. It should first be pointed out that the 9 — Judgment in the Germany v Council case (cited in footnote Court has consistently held that in pursuing 8) at paragraph 47; judgment in the Hierl case (cited in footnote 8) at paragraph 13; and judgment in Joined Cases the objectives of the common fisheries and C-267/88 to C-285/88 Wuidart and Others [1990] ECR agricultural policy the Community institu- I-435, at paragraph 14. 10—Judgment in Case C-331/88 Fedesa and Others [1990] tions must secure the permanent harmoni- ECR I-4023, at paragraph 8.

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26. In the present case, the Council ini- (a) Infringement of the requirement to tially fixed a precautionary TAC of ensure the rational and responsible exploi- 33 000 tonnes for Zone VIII. That TAC tation of resources was not adopted in the light of conclusive scientific findings but, rather, in the light of the previous trends of catch quotas in the zones concerned. 29. In the Spanish Government's submis- sion, the contested provisions are in breach of the objective contained in Regulation No 3760/92 of a rational and responsible exploitation of resources. According to the 27. However, it does not follow from Spanish Government, that arises essentially Spain's mere assertion that the Council from the fact that the ultimate effect was may not amend the TAC in the absence of that a single TAC was fixed for two established scientific findings, that the different and completely independent Council manifestly misused its powers stocks of anchovy situated in different when it adopted the measures in question. zones, namely Zone VIII and Zones IX Moreover, it is beyond dispute that the and X, CECAF 34.1.1. On the one hand, stock in Zone VIII is not jeopardised by the the TAC in force for Zone VIII is substan- exchange of catch quotas between Portugal tially amended without this being necessary and France. on the basis of new scientific findings. On the other hand, Regulation No 3760/92 contains procedural rules for the amend- 11 — Judgment in the Mondiet case (cited in footnote 8) at ment of a TAC. Those rules are circum- paragraph 31. vented by the Council's conduct of allowing

30. The Council and the Commission again rely in this respect on the broad discretion which they have in the adoption of provi- 32. Moreover, as stated in Article 2(2), the sions under the common fisheries policy. purpose of that regulation is to establish a They further argue that their chosen line of framework for the conservation and pro- conduct did not entail the risk of over- tection of resources. The Council is there- fishing in Zone VIII. That risk would have fore authorised to fix the respective TACs arisen only if a new overall TAC had been and to allocate the fishing opportunities fixed for that zone, which, under the between Member States. However, in that distribution formula laid down in the Act respect also, the Court has consistently held of Accession, that is, 90% for Spain and that in the implementation of the common 10% for France, would have had to be agricultural policy the Council has a broad approximately 50 000 tonnes. In order to discretion, with the result that judicial counter such a risk of overfishing, the review must be limited to examining whe- transfer of fishing opportunities (of 5 008 ther the exercise of that discretion is tonnes) between Portugal and France even- vitiated by a manifest error or misuse of tually took place under Article 9 of Reg- powers, or whether the authority in ques- ulation No 3760/92. In the end, the Coun- tion did not clearly exceed the bounds of its cil merely adopted what had been negoti- discretion. 12 ated between the Member States concerned within the limits of the possibilities allo- cated to them, but without jeopardising the stock of anchovy. The defendants also refer to the fact that fixing a TAC is not the only way to conserve stocks and that in this case 33. It should also be pointed out that the it was done only on a precautionary basis Council is required to evaluate a complex since at the material time there were no economic situation when, acting on the established scientific findings relating to the basis of Article 8(4) of Regulation stocks. No 3760/92, it determines the TACs and distributes the fishing opportunities between Member States.

agricultural policy in connection with the of fishing possibilities between Portugal evaluation of a complex economic situation and France. Even though this involved is not limited solely to the nature and scope different stocks from different zones, it of the measures to be taken but also, to may nevertheless be assumed that, overall, some extent, to the finding of basic facts the stocks are not jeopardised. inasmuch as, in particular, it is open to the Council to rely if necessary on general findings.13 Since, in claiming that Regula- tion No 3760/92 has been infringed, the Spanish Government again relies essentially 36. That means, however, that the objec- on the absence of scientific advice and, tive of rational and responsible exploitation moreover, merely complains that different of r e s o u r c e s , w h i c h R e g u l a t i o n stocks from different fishing zones may not No 3760/92 was adopted to achieve, has be made subject to a common TAC, it has not been infringed. failed to show that the Council manifestly misused its powers.

37. In that respect, the Kingdom of Spain's action is unfounded.

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adopted. It is true that Article 9 of Regula- constituted such a derogation and the tion No 3760/92 provides for the possibi- adjustment of a compromise. However, lity of exchange, but that is merely intended since conflicts of interest are always liable to facilitate the distribution of the respec- to occur in connection with fisheries policy, tive TACs as national quotas. However, the Council must have the freedom to give once a TAC has been fixed, it is specifically preference to certain interests over others not permitted to amend it for different when it adopts particular measures. zones by circumventing the provisions in force and to effect a redistribution. In particular, in this context, account must also be taken of the long period of seven years in total, which results in a funda- mental redistribution of the quotas. It 40. Furthermore, the TAC originally fixed follows from the spirit and purpose of the for Zone VIII has manifestly not been possibility of exchange provided for in amended, since the quota promised to Article 9 that, while particular quotas in France must still be attributed to Zones specific zones may certainly be transferred IX and X, CECAF 34.1.1. That may not be to other fishing nations, relative stability absolutely in accordance with a strict nevertheless continues to apply to each interpretation of the concept of relative individual zone and stock. That principle stability, but a broad view is called for in therefore concerns a particular species of this context. Such an approach is plainly fish in a particular fishing zone. necessary in the light of the aforementioned problems of integrating Spain and Portugal, as major fishing nations, into the common agricultural market.

nity's TACs, determined essentially on the 46. In the present case, it should be noted basis of the catches from which traditional that the Council authorised Portugal to fish fishing activities, the local populations part of its quota from Zones IX and X, dependent on fisheries and related indus- CECAF 34.1.1 in Zone VIII. However, that tries of that Member State benefited before quota is transferred in its entirety to the quota system was established'. 14 France. It is clear from the submissions of the parties that Portugal has traditionally never fished in Zone VIII. It should also be noted that the Council chose that course of action, that is, the exchange of fishing opportunities, in order to avoid having to make an overall increase in the TAC for 43. Likewise, in its judgment in the Zone VIII. Romkes case, 1 5the Court held that the requirement of relative stability must be understood as meaning that in a distribu- tion of quotas each Member State is to retain a fixed percentage.

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solution should be sought instead of resort- grounds without harming any third party. ing to the indirect means of a quota In the present case, however, the exchange exchange in order to avoid an overall was carried out only because an increase in increase in the catch quotas. 17 the catch quotas overall would otherwise have been necessary, which would probably have led to the stock being jeopardised and would therefore not have been possible. The accusation that Spain's action is incon- sistent with its previous actions {venire contra factum proprium) is therefore not 49. Although it cannot be denied that the founded. accession of those two countries to the Community involved difficulties, that can- not justify the Council's conduct. The Council manifestly increased the TAC and redistributed it by allowing for a quota allocated to Portugal for the first time in a zone in which Portugal had no fishing interests, without observing the principle of relative stability laid down in the Act of 51. It follows from all the foregoing that Accession. the Council regulations contested by Spain were adopted in breach of the principle of relative stability laid down in Regulation No 3760/92. The Kingdom of Spain's action is therefore well founded.

(2) annul the fifth heading, on anchovies, in Annex I to Council Regulation (EC) No 746/95 of 31 March 1995 amending Regulation (EC) No 3362/94 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1995 and certain conditions under which they may be fished;

(3) order the Council to pay the costs and the Commission to bear its own costs.

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