C-4/96

OPINION OF MR LA PERGOLA — CASE C-4/96

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 30 September 1997 *

I — The questions submitted for a prelimi- below, (i) the validity of Annex VII to the nary ruling in this case and their legislative Council Resolution of 3 November 1976 and factual context (hereinafter 'the Hague Resolution'), (ii) the validity of Council Regulation (EC) N o 3362/94 of 20 December 1994 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1995 and certain conditions under which they 1. The five questions submitted for a pre- may be fished (hereinafter 'Regulation liminary ruling in this case have been raised N o 3362/94'), 1and (iii) the interpretation of by the High Court of Justice in Northern the principle of Member States' liability for Ireland, Queen's Bench Division (hereinafter damage which may be caused to individuals 'the High Court'), in proceedings pending through breaches of Community law: before it between two producers' organisa- tions in Northern Ireland — the Northern Ireland Fish Producers' Organisation (along with the individual fishermen associated with it) and the Northern Ireland Fishermen's Federation — and the Department of Agri- culture for Northern Ireland. '(1) Is the validity of the allocation to the United Kingdom of its cod and whiting quotas in Area VIIa pursuant to Article 3 of Council Regulation (EC) N o 3362/94 dependent on whether By those questions, the High Court is asking Annex VII to the Council Resolution of the Court of Justice to interpret Article 5 of 3 November 1976 was properly the EC Treaty (hereinafter 'the Treaty') and adopted? to rule on the validity of two measures adopted by the Council in regard to the exploitation of fishery resources.

4. With specific reference to the dominant activity of maritime fishing, the common (5) If the fixing of the said quotas by Regu- organisation of the markets (hereinafter 'the lation (EC) N o 3362/94 is invalid, are COM') was first put into effect at an historic the applicants entitled to claim damages juncture marked by a serious economic crisis against the respondent and, if so, what within the sector: not only had the technical are the conditions for liability?' competitiveness of the European fishing industry decreased in the face of rising com- petition at world level, but catches had also been reduced as a result of the intensive

2 — See Article 38(1) of the Treaty (under which fishery products 2. Before examining the questions submitted come within the concept of agricultural products) and Annex II thereto (which includes fish within the scope of the com- by the High Court, it may be useful to recall mon agricultural policy).

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exploitation of fishery resources rendered laid down, including the conditions for con­ possible by the huge investments made, in a servation and management, designed to favourable economic climate, over the ten ensure the durable exploitation of such years from 1958 to 1968. resources (the common structural policy for 4 the fishing industry).

The task in prospect was to restore the con­ ditions for rational management and to ensure a socially acceptable transition from 6. However, precisely at the time when the the national market organisations to that of Community was about to establish the inter­ the Community. That objective has been nal system of maritime fishing, the entire pursued — as was already the case for other international legal context was called in 'agricultural' products stńcto sensu (that is question through the extension, by Iceland to say, products derived from cultivation or (in 1975) and other non-member countries breeding) — by way of twofold legislative with significant fishing areas in the N o r t h action. Sea and the N o r t h Atlantic (such as Norway and Canada in 1977), of their respective exclusive economic zones to 200 nautical miles from their coastlines.

3 — Based on a common system of prices, common marketing rules (designed to improve the quality of products), incen­ tives to establish producer organizations, the right of equal access to any port in the Community for the purpose of 4 — See Council Regulation (EEC) N o 2141/70 of 20 October landing catches, and regulation of trade with non-member 1970 laying down a common structural policy for the fishing countries: see Council Regulation (EEC) N o 2142/70 of industry (OJ, English Special Edition 1970 (III), p. 703), 20 October 1970 on the common organization of the market repealed —with effect from 1 February 1976 and following in fishery products (OJ, English Special Edition 1970 (III), the enlargement of the Community — by Council Regu­ p. 707), repealed — w i t h effect from 1 February 1976 and lation (EEC) N o 101/76 of 19 January 1976 (OJ 1976 L 20, following the enlargement of the Community — by Council p. 19). With the common structural policy, based on the Regulation (EEC) N o 100/76 of 19 January 1976 (OJ 1976 principle of equal access for fishing boats of a Member State L 20, p. 1). The common organization of the market in fish­ to the maritime zones of other countries in the Community, ery and aquaculture products is at present governed by the Council sought to promote the coordination of uniform Council Regulation (EEC) N o 3759/92 of 17 December 1992 national policies and the granting of financial aid for the (OJ 1992 L 388, p. 1), as subsequently amended. rationalization of Member States' fishing fleets.

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7 — See the first recital in the preamble to Council Regulation (EEC) N o 170/83 of 25 January 1983 establishing a Commu- nity system for the conservation and management of fishery resources (OJ 1983 L 24, p. 1), repealed, with effect from 1 January 1993, by Council Regulation (EEC) N o 3760/92 of 8. In response to the extension by a number 20 December 1992 establishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1). Within this of non-member countries of their exclusive 200-mile zone, the Hague Resolution provided that the fishing zones to 200 nautical miles from the adoption of any conservation measures which might prove necessary would be a matter for the Community. However, coastline, the Hague Resolution provided pending the negotiations for the introduction of a Commu- nity fisheries system incorporating such measures, the Hague that, with effect from 1 January 1977, the Resolution left intact the power of individual Member States Member States — acting in concert and on a unilaterally to adopt appropriate transitional measures, on a non-discriminatory basis and subject to Commission unanimous basis — would also extend to up approval, intended to ensure protection of resources in their respective coastal fishing zones (see footnote 39 below). to 200 nautical miles their respective fishing Moreover, in those zones coming within the jurisdiction of the Member States, fishing by non-Community vessels (see zones (the external limits of which at the footnote 19 below) was to be governed by agreements between the Community, acting as a single sovereign entity, and the non-member countries concerned. At the same time, the Hague Resolution mandated the Commission to negoti- ate, on behalf of the Community, agreements with certain 5 — It may, however, be noted at this point — so far as is relevant non-member countries concerning access for vessels from for the purpose of the present Opinion — that Ireland, the Member States to those countries' territorial waters. whose fleet was not sufficiently developed to operate in the 8 — See International Legal MateriaL·, Vol. XV (1976), p. 1425, waters of non-member countries, was not directly disadvan- and OJ 1981 C 105 of 7 May 1981, setting out the text of the taged by the losses of catch potential in such waters resulting document entitled 'Council Resolution of 3 November 1976 from the unilateral extension by non-member countries of on certain external aspects of the creation of a 200-mile fish- their exclusive fishing zones to 200 miles from their coast- ing zone in the Community with effect from 1 January lines. 1977'. As is clear from the Council's observations in the 6 — See footnote 7 below and the portion of the text relating present case, the document in question constitutes Annex I thereto. to the Hague Resolution.

By Annex VII, the Council also recognised 10 — According to the Commission, it was accepted that the spe- the need to take account, when applying the cial needs of local populations particularly dependent on fishing should be represented by landed quantities of stocks common fisheries policy, of the specific vital having significant importance for those populations, and it is precisely to those quantities that the reference to 'Hague needs of other economically disadvantaged Preference' applies: see the Commission Staff Working coastal regions in which the local communi- Paper, Hague Preferences, SEC(95) 1666, of 9 October 1995, p. 1. ties are particularly dependent on fishing and 11 — OJ 1980 C 158, p. 2. the industries allied thereto, namely 'the 12 — Point 2 of the above Declaration states: 'In compliance with northern parts of the United Kingdom' 9 and the Treaties and in conformity with the [Hague Resolution, the common overall fisheries policy] should be based on the Greenland (to which, however, the Treaty following guidelines:

(b) fair distribution of catches, having regard, most particu- larly, to traditional fishing activities, to the special needs of regions where the local populations are particularly dependent upon fishing and the industries allied thereto 9 — It appears from the case-file that the expression 'northern [note in the original: "See paragraphs 3 and 4 of Annex parts of the United Kingdom' for the purposes of the Hague VII ..."], and to the loss of catch potential in third Preferences comprises Scotland, Northern Ireland, the Isle of country waters [resulting from the general extension of Man, and that part of England between the ports of Bridling- territorial waters to 200 nautical miles from the coast- ton and Berwick. line]'.

12. In particular, and with specific regard to the two fish stocks and the fishing area at issue in the main proceedings, the above parameters translated into the following ton- nages: for Ireland, 6 954 tonnes per annum for cod and 7 196 tonnes per annum for whiting; for the United Kingdom, 1 223 tonnes per annum for cod and 2 334 tonnes For that purpose, the Commission inter- per annum for whiting. preted Annex VII as meaning that, for the purpose of taking account of the vital needs of economically disadvantaged coastal areas, the northern parts of the United Kingdom ought to be guaranteed — for each fish stock — catches equal to those landed in 1975 by 13. Annex VII was once again expressly vessels of less than 24 metres. According to referred to in the sixth recital in the pre- the Commission, landings in Scotland, amble to Council Regulation (EEC) Northern Ireland and the Isle of Man by N o 170/83 of 25 January 1983 establishing a vessels of less than 24 metres 'are taken to be Community system for the conservation and the norm at which vital needs are satisfied'. 14 management of fishery resources (hereinafter 'Regulation N o 170/83'). 17 The adoption of this regulation marked the culmination of the Commission's efforts to achieve an over-

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all fisheries policy, albeit beyond the time- of non-member countries. 20 Moreover, it limit of 1 January 1981 (see point 10 was precisely to that principle that the over- above). 18 exploitation of fish resources was probably attributable.

With a view to achieving the abovemen- tioned objectives, Regulation N o 170/83 provided for the possibility of adopting appropriate conservation measures relating — according to the circumstances — to indi- vidual fish species or to groups of fish spe- The new system, which is designed to cies. Such measures were to be based on the 'ensure the protection of fishing grounds, the available scientific advice, in particular on the conservation of the biological resources of reports of the Scientific and Technical Com- the sea and their balanced exploitation on a mittee for Fisheries set up under the Com- lasting basis and in appropriate economic mission's auspices (see Articles 2(1) and 12 and social conditions' (Article 1 of Regu- of Regulation N o 170/83). 21 lation N o 170/83), introduced an important derogation from the principle of non- discrimination on grounds of nationality, 19 which governs access to fishery resources in the maritime territorial waters of the Mem- ber States, as well as (in so far as permitted by bilateral international agreements) in the The abovementioned conservation measures fishing areas coming within the jurisdiction included the restriction of fishing effort, in

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NIFPO AND NORTHERN IRELAND FISHERMEN'S FEDERATION v DEPARTMENT OF AGRICULTURE FOR NORTHERN IRELAND particular by limits on catches (Article the Council stated as follows in the preamble 2(2)(d) of Regulation N o 170/83). to Regulation N o 170/83:

'... conservation and management of resources must contribute to a greater stabil- ity of fishing activities and must be appraised 14. Pursuant to Article 3, limits on the on the basis of a reference allocation reflect- exploitation levels which might prove neces- ing the orientations given by the Council; sary were to be achieved by a system of annual fixing, in the light of the available sci- entific evidence, (i) of the total allowable catch (hereinafter 'TAC') for each fish stock or group of fish stocks, and (ii) of the rel- evant quotas available to the Community pursuant to undertakings assumed with non- ... that stability, given the temporary biologi- member countries. cal situation of stocks, must safeguard the particular needs of regions where local popu- lations are especially dependent on fisheries and related industries as decided by [the Hague Resolution] and in particular Annex VII thereto;

The volume of catches available to the Com- munity was, in turn, the subject of distribu- tion among the Member States 'in a manner which assures each Member State relative ... therefore, it is in this sense that the notion stability of fishing activities for each of the of relative stability aimed at must be under- stocks considered' (Article 4 of Regulation stood' (fifth, sixth and seventh recitals in the N o 170/83; emphasis added). preamble).

(ii) the specific needs of areas in which the population is particularly dependent on 18. More precisely, the system of allocation fishing and its dependent industries (on keys consisted in the allocation to individual the basis of the values determined under Member States of absolute quantities the Hague Preference in accordance with the parameters set out by the Commis- sion in its 1980 Communication 25); and 22 — Council Regulation (EEC) N o 172/83 of 25 January 1983 fixing for certain fish stocks and groups of fish stocks occurring in the Community's fishing zone total allowable catches for 1982, the share of these catches available to the 23 — See the fourth recital in the preamble to Regulation Community, the allocation of that share between the Mem- N o 172/83. ber States and the conditions under which the total allow- able catches may be fished (OJ 1983 L 24, p. 30). Unlike 24 — 1978 was the last year for which the Commission, when subsequent annual regulations, Regulation N o 172/83 had drafting its 1980 Communication, had complete infor- the purpose, therefore, of allocating quantities for the previ- mation at its disposal. ous year rather than for the following year. 25 — See point 11 above.

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NIFPO AND NORTHERN IRELAND FISHERMEN'S FEDERATION v DEPARTMENT OF AGRICULTURE FOR NORTHERN IRELAND

26 — The reference to 1976 (rather than to 1978) may be explained by the fact that the general extension by non- member countries of their exclusive fishing zones to 200 29 — See the answer given by Mr Contogcorgis on behalf of the miles from their coastlines dated back to that year. Commission (9 January 1984) to Written Question 27 — Fishing Area VIIa is situated in the Irish Sea, which sepa- N o 1077/83 by Mrs Sylvie Le Roux (84/C 38/07) (OJ 1984 rates Great Britain and Ireland. C 38, p. 4). For a reference to the 'Council's intention to 28 — The fact that the sum total of the allocation keys for the retain [the 1983 allocation key], which was worked out dur- two Member States, for Area VIIa and for each of the two ing lengthy negotiations, for 10 years', see also the Opinion stocks indicated, is less than 100% can be explained by the ofAdvocate General Lenz in Case 46/86 Romkes v Officier fact that quotas in this area and for the same stocks had also van Justitie [1987] ECR 2671, 2678, in particular at p. 2679. been allocated to Belgium, France and the Netherlands. 30 — See footnote 7 above.

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It is not by chance that the twelfth to four- amended version resulting from the so-called teenth recitals in the preamble to that regu- '1988 political compromise'. 31 lation substantially reproduce the text of the fifth, sixth and seventh recitals in the pre- amble to Regulation N o 170/83 (see point 15 above).

Annual quotas have thus been allocated to Ireland and the United Kingdom which are calculated on the basis of the mid-point between:

(ii) the notional quotas equivalent to those theoretically resulting from application of Hague Preference (or, should the sum of those notional quotas be greater than The High Court also states that the TACs the entire amount of the catches available fixed by the Council for these two stocks in to the Communities, the quotas resulting Area VIIa over the period 1983-1989 were from the allocation of that amount well in excess of the corresponding 'histori- between all the Member States entitled, cal' international catches recorded by ICES. According to the latter organisation, the maximum sustainable yield of the two stocks in question would produce TACs well below 31 — At the Council of Fisheries Ministers in December 1988, the British Government invoked Hague Preference for the level necessary to prevent recourse to North Sea haddock —which, in its opinion, entitled the United Kingdom to a quota of 60 000 tonnes for 1989 — in Hague Preferences. so far as application of the relevant allocation key would have given it a quota for the stock in question amounting to only 48 760 tonnes (in contrast to the 157 560 tonnes allo- cated to the United Kingdom the previous year). This claim by the United Kingdom, however, aroused opposition on the part of other Member States, which took the view that the factors underlying the Hague Preferences had been incorporated once ana for all in the allocation keys estab- lished by Regulation N o 172/83. The application to the United Kingdom of the Preference for North Sea haddock would thus have involved a double burden for the other Member States. Finally, on a proposal by the Commission, the Council accepted the political solution of allocating to 22. That situation changed — for whiting the United Kingdom a quota of 54 380 tonnes, apparently and cod — as from 1990 and 1991 respec- the mid-point between the figure corresponding to the Hague Preference and that corresponding to the allocation tively. As a result, the two Member States key. This compromise solution was subsequently followed in several other cases: see the Commission Staff Working have invoked each successive year the Hague Paper, cited above in footnote 10, pp. 2 and 3, and A. E. Preference mechanism, albeit applied in the Munir, Fisheries after Factortame, London, 1991, p. 65.

More particularly, for the purposes of the present Opinion, the share (equivalent to 100%) of the TACs for cod and whiting 24. The High Court also points out that the available to the Community in Area VIIa — overall effect of recourse by the United determined according to Regulation Kingdom to the Hague Preference mecha- nism — bearing in mind also the additional fish stocks other than the two which at 32 — According to the order for reference, the losses indicated in present concern us — has been largely posi- the text were significantly offset by the effect of quota swaps made by the United Kingdom, amounting to defini- tive for that State's fleet. tive figures of 1 370 tonnes for cod and 3 450 tonnes for whiting. 33 — Article 8(4) of Regulation N o 3760/92 states as follows: T h e Council, acting by qualified majority on a proposal from the Commission: (i) shall determine for each fishery or group of fisheries, on a case-by-case basis, the total allowable catch and/or total allowable fishing effort, where appropriate on a multiannual basis. These shall be based on the manage- ment objectives and strategies where they have been established [by the Council, acting in accordance with the procedure laid down in Article 43 of the Treaty]; (ii) shall distribute the fishing opportunities between Mem- That mechanism has resulted, over the ber States in such a way as to assure each Member State period 1989-1995, in a total gain of 13 700 relative stability of fishing activities for each of the stocks concerned; however, following a request from tonnes (vis-à-vis the notional quotas to the Member States directly concerned, account may be taken of the development of mini-quotas and regular which the United Kingdom fleet would have quota swaps since 1983, with due regard to the overall been entitled on the basis of the allocation balance or shares;

34 — That is to say, in the case of cod, 6 954 annual tonnes for Ireland and 1 223 annual tonnes for the United Kingdom, and, in the case of whiting, 7 196 annual tonnes for Ireland and 2 334 annual tonnes for the United Kingdom (sec point 27. The action brought by N I F P O seeks to 12 above). impugn, not the validity of the method of 35 — The figures indicated in the text were arrived at by the fol- lowing calculation: sub-allocation of the national quotas of cod (1) theoretical quotas resulting from application of the allo- and whiting applied by the United Kingdom cation keys: Ireland = 5 800t.,x 46.67 % = 2 705 t .cod authorities, but rather the validity of the 8 000 t. x 39.63 % = 3 170 t. whiting United Kingdom = 5 800 t. x 42.67 % = 2 475 t. cod measure constituting the premiss for that 8 000 t. x 52.83 % = 4 225 t. whiting; allocation, namely Regulation N o 3362/94. (2) notional quotas resulting from the application of the Hague Preferences, amended to take account of the fact that the sum of the preferences in absolute terms (equal to 8 177 t. for cod and 9 530 t. for whiting) would have been greater than the entire Community volume avail- able for the two species: 36 — Reaching figures of 2 440 and 3 350 tonnes for cod and Ireland = 5 800 t. x 85 % = 4 930 t. cod whiting respectively, on 5 May 1995, when the United 8 000 t. x 75.5 %= 6 040 t .whiting Kingdom carried out the provisional allocation of the United Kingdom = 5 800 t. x 15 % = 870 t. cod national quotas among British producer organizations and 8 000 t. x 24.5%= 1 960 t. whiting; independent fishing vessels. As a result of subsequent suc- (3) median figures between (1) and (2), as rounded off: cessive swaps, the United Kingdom's quotas for Area VIIa Ireland = 3 817.5 t. cod, 4 605 t. whiting on 1 September 1995 amounted to 2 575 and 3 950 tonnes United Kingdom = 1 672.5 t. cod, 3 092.5 t. whiting. respectively.

From the foregoing, N I F P O concludes that the Council never formally adopted Annex VII.

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For that reason, the Council could not law- The actual operation of that system has fully have applied it — in derogation, more- impoverished local fishermen, impacting over, from the fundamental principles of the negatively on the relative stability of their common fisheries policy 41 — in Regulation fishing activities, contrary to Regulation N o 3362/94. In addition, the document in N o 3760/92, and in particular Article 8(4)(ii) question is expressly referred to in the pre- thereof, under which the Council, in distrib- amble to the basic regulation (Regulation uting Community fishing opportunities, N o 3760/92), contrary to the general prin- must act 'in such a way as to assure each ciple of legal certainty, under which mea- Member State relative stability of fishing sures that have not been published cannot activities for each of the stocks concerned' have any legal effect vis-à-vis individuals (emphasis added). whose legal position is adversely affected thereby.

30. Furthermore, according to N I F P O , even if Annex VII had been lawfully adopted, it was substantively unlawful, with the result 31. N I F P O also argues that the Hague Pref- that Regulation N o 3362/94 was also unlaw- erence system is incompatible with the com- ful. mon fisheries policy and the fundamental objectives of Regulation N o 3760/92 inas- much as the long-term effects of the indefi- nite extension of preferences run counter to the derogation, expressly stated to be tempo- rary, which Annex VII allowed to be intro- duced from that policy and those objectives. First of all, the system of Hague Preferences has, in the view of N I F P O , had the effect, contrary to its stated objectives, of placing at a considerable disadvantage the population in Northern Ireland engaged in fishing, espe- cially in the light of the Northern Ireland fleet's economic dependence on catches of cod and whiting. 42

32. N I F P O submits, in particular, that the discrimination, in terms of the preference The increase in fishing capacity (fleet sizes) levels and parameters, between fishermen in which the Hague Preferences allowed Ire- Ireland and those in Northern Ireland — land to achieve 44 is also alleged to be con- that is to say, between identical categories of trary to the general objectives of the com- producers — is totally unjustified. mon fisheries policy. In particular, the increase in fleet size which was the objective of the abovementioned Development Pro- gramme was as a matter of historical record connected to the establishment of the Com- munity fishing zone; according to N I F P O , however, such grounds could not be relied on in the case of the Irish Sea, in which the extension of Irish territorial waters to 200 nautical miles from the coastline was physi- Equally illogical, it claims, is the fact that, cally impossible. even though the Irish Government's Deve- lopment Programme for coastal fisheries — on which the Hague Preference system relat- ing to Ireland was founded — came to an end in 1979 (a year in which the overall catches in Area VIIa were no greater than

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the allocation keys under Regulation quotas for fishermen in Northern Ireland N o 172/83 (see points 17 and 18 above). 45 following the general decline in the fish stocks concerned. It is no accident that the Irish Sea quotas allocated to the United Kingdom as a whole (without taking account of the swaps with other Member States) decreased, after 1989, by an extent greater than the overall TACs (or, to be more pre- cise, the Community share of the TACs) for Consequently, the implementation of the the same stocks. 46 Hague Preferences in situations where TACs are falling — involving discriminatory treat- ment of the Member States concerned to an extent greater than that already allowed by those keys in 'normal' situations — resulted in double counting of the preferences them- selves. 35. Furthermore, Ireland — which has, in recent years, used up only 30% of its quotas increased by Hague Preference (that is to say, catch sizes lower than the quotas result- ing from the allocation keys) — passes the benefit of the preferences, through swaps 34. According to N I F P O , the Hague Prefer- with other Member States, on to categories ence system established pursuant to Annex of fishermen other than those for whom the VII is also contrary to the principle of pro- mechanism was intended, to the detriment of portionality. relative stability and traditional fishing activities in the areas directly and originally intended to benefit.

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the losses incurred by the populations 37. According to the applicant organisations, affected in Area Vila. Moreover, future since the determination by Regulation opportunities for such swaps would appear N o 3362/94 of the United Kingdom quota to be rather limited — particularly if in for the species in question did not leave the future the TACs continue to fall — given United Kingdom with any discretion in that the United Kingdom is already using up regard to the sub-allocation among national practically 100% of its quotas increased by operators, the national act challenged should Hague Preference. be treated in the same way as an act trans- posing a directive.

36. In N I F P O ' s view, it is from the illegality (on account of the clash, as already demon- strated, with the principles of non- The test which the Court laid down in Fran- discrimination and proportionality, and with covich is, they argue, satisfied in that the the common fisheries policy) of the alloca- Community rules which have been breached tion of fishing opportunities among the confer clearly identifiable rights on the pro- Member States, carried out by Regulation ducers forming part of the applicant organi- N o 3362/94, that its own entitlement to sations; moreover, there is a causal link compensation for damage against the United between the harm suffered by those produc- Kingdom authorities arises pursuant to the ers and the breach committed by the Depart- Court's decision in Francovich. 47 ment of Agriculture for Northern Ireland.

39. With particular reference to the Hague Resolution, the Danish Government and the Commission emphasise that, since neither that resolution nor the preference system which it established has an independent legal status, the Council is not legally obliged, when fixing national quotas, to accede to a request for Hague Preference. 41. In any event, the Irish Government is also in agreement that the criteria set out in Annex VII have been incorporated in the principle of relative stability, contained in a series of binding legal measures adopted sub- Moreover, it was not Annex VII, but rather sequently (such as Regulation N o 170/83 and the 1980 Communication, already referred to Regulation N o 3760/92: see points 13 to 15 on several occasions (see point 11 above), and 20 above). which set the level of the Hague Preferences to be allocated to Ireland and the United Kingdom.

40. The Irish Government takes a different view, arguing that it follows from the Court's case-law that the Hague Resolution 42. In addition, it maintains that Annex VII is binding, giving effect as it does to the obli- was validly adopted, as the Council's Legal gations of cooperation assumed by the Mem- Service has formally declared, even though it ber States under Article 5 of the Treaty (see was placed in the archives in the version and footnote 39 above). form which it had when approved, including the title 'Draft Council Resolution'.

Since the Council has declared itself to be bound by the Hague Resolution and it has always acted consistently, the principles of the protection of legitimate expectations and regard for the full maintenance of the acquis communautaire preclude the Council from 43. O n the other hand, since it is a non- departing from the Hague Resolution with- binding measure and as such not subject to

The Council's broad discretion to adopt 47. In particular, as the United Kingdom measures based on Article 40 of the Treaty Government has pointed out, the argument relates not only to the nature and scope of that Regulation N o 3362/94 applied Hague the measures to be adopted but also, to some Preferences in disregard of scientific evidence extent and except for cases of manifest error is contradicted by the fact that recourse to and misuse or abuse of powers, to the estab- those preferences did not result in increased lishment of the basic facts. TACs for the stocks in question.

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49. The Hague Preferences constitute an essential element in the general balance, In this sense, the quotas which the Council which the Council has sought to achieve, allocated to the United Kingdom — albeit between the various conflicting interests. lower than those allocated to Ireland — can- Consequently, their impact must be assessed not be regarded as being manifestly dispro- as a whole, and not by reference to a particu- portionate in relation to the objective of rela- lar group of economic operators or stocks: tive stability of fishing activities for all for example, for the purposes of the main Community operators. proceedings, the impact of the preferences falls to be assessed in relation to the fisher- men of all the northern parts of the United Kingdom (rather than only those from Northern Ireland) and to all fish stocks (rather than cod and whiting alone). 50. Furthermore, as the Irish Government has observed, in quantifying the TACs of the 48 — According to the Danish Government, the significance of stocks at issue, the Council did take account the 11th, 12th and 13th recitals in the preamble to Regu- lation N o 3760/92 is that of indicating the actual and defini- of the temporary biological situation of fish tive incorporation of Hague Preference in the common fisheries policy, and more specifically in the principle of stocks, contrary to N I F P O ' s contention. In relative stability, by Regulation N o 172/83. Consequently, that regard, the Hague Preferences, which since 1983 there has been no basis whatsoever for arguing that the Hague Resolution and the attendant system of relate only to the allocation of TACs among preferences continued to be independently applicable. See the Member States, could not have any also footnote 45 above and the part of the text relating thereto. effect.

54. It is not difficult to appreciate the frus- 52. Even if, on the other hand, the contested tration that an economic operator, in a legal regulation were to be declared unlawful, that position similar to that of the applicant conclusion would remain valid (discounting organisations or the individual operators the possibility for N I F P O to seek judicial associated with them, may experience — in redress against the Council under Articles the interpretation of legal measures produc- 178 and 215 of the Treaty). This is so in view ing effects, albeit indirectly, in their regard — of: (i) the obligation on the United Kingdom when faced with a situation in which the leg- to apply that regulation by virtue of the pre- islative sources repeatedly refer back to sumption of validity attaching thereto; (ii) another measure which is not accessible inas- the fact that the respondent cannot be held much as it is covered by the constraints of liable for the allocation of the disputed quo- confidentiality. tas to the United Kingdom; and (iii) the fail- ure by N I F P O to demonstrate the existence of a causal link between the damage com- plained of and the operation of the Hague Preferences, since, in particular, the problems of the Northern Ireland fleet cannot be attributed in their entirety to the preference I shall leave aside the question whether or system. not the denial of access to Annex VII, as decided by the Council in June 1995 (see point 28 above), complies with the criteria laid down by Decision 93/731, cited above. However it may be, I cannot disguise my misgivings in the face of the publication, approved by the Council in May 1981, of III— Answer to the first, second and third Annex I to the Hague Resolution: if those questions submitted for a preliminary rul- requirements of confidentiality, which in ing contrast precluded publication of the resolu- tion and the other annexes, were not relevant to Annex I, why was it not published until more than four years after its adoption? O n the other hand, if publication of Annex I at 53. In my view, the first three questions that date had become possible precisely raised by the High Court — relating to the because the aspects of confidentiality relating

55. These misgivings notwithstanding, I am A resolution, on the other hand, is one of not sufficiently convinced by the reasons put those (no less important) atypical measures, forward by N I F P O in contesting the proper to which the Council and the Commission adoption of the Hague Resolution (including occasionally resort — albeit in the context of Annex VII thereto), which the Council, in increasing integration between the legal sys- contrast, states did take place. tems of the Member States — for the pur- pose of expressing their own political will, specifying the contours of agreements in principle reached within the institution, with a view to preventing such agreements from being called once again in question. The measures of inquiry sought in this regard by the applicant organisations in the main proceedings, and which the Court has refused to order (see point 28 above), were in particular suggestive of what would, in the parlance of common law procedure, be known as — if I may be forgiven the pun — a fishing expedition. In other words, resolutions (particularly those of the Council) in principle amount to no more than political commitments, the context of which, however, points forward to subsequent development in the legally valid forms contemplated by Article 56. I take the view, moreover, that the argu- 189 of the Treaty. 51 Various Community ment that non-publication of the Hague Resolution could have affected the validity of the measure must be discounted. As the 50 — Consequently, NIFPO's reference to the principles of legal United Kingdom and Danish Governments, certainty and protection of the legitimate expectations of the Council and the Commission point out, individuals in connection with the applicability to them of measures taken by the public authorities would also appear resolutions do not come within the range of to lack merit. measures that are legally binding, 49 which 51 — Consequently, the failure by the Council to respect a time- limit for the adoption of a subsequent decision, which the institution 'set itself' by means of a resolution, does not give rise to an assessment of the Treaty, since the style and form of the measure chosen by the Council for that pur- pose reveal its intention to create a time-limit different from 49 — They are no different from recommendations and opinions, those envisaged by the Treaty: see the judgment in Joined which, under Article 189 of the Treaty, 'shall have no bind- Cases 90/63 and 91/63 Commission v Luxembourg and Bel- ing force'. gium [1964] ECR 625, in particular at pp. 631 and 632.

Annex VI to the Hague Resolution made provision for a procedure under which the This, as N I F P O points out, follows from the Commission could determine that the con- Court's ruling in Case 141/78, 54 which con- tent of any national conservation measures cerned precisely the Hague Resolution. In would not create legal difficulties. By requir- that judgment, the Court stated that Annex ing Commission approval and by limiting its VI to that resolution constituted a specific power of authorisation solely to national and concrete expression, in the particular measures aimed at conservation and of a sector of conservation of the biological non-discriminatory nature, Annex VI settled, resources of the sea, of the duty of coopera- once and for all, the question of the exercise tion laid down in general terms by Article 5 of the powers and competence of the Mem- of the Treaty. In other words, according to ber States in the matter of the internal fisher- the Court's case-law, resolutions too form, ies system and therefore unquestionably pro- duced binding legal effects.

59. What came next, however, is important: the undertakings which the Council assumed at the political level through Annex VII — and which it reiterated in the Declaration of 60. It is true that the preamble to Regulation 30 May 1980, with specific reference to its N o 3760/92, Article 8(4) of which forms the own legislative guidelines in regard to fair basis for the regulation here at issue, contains distribution of catches (see point 10 above) — as, in its time, the preamble to Regulation — were in fact transposed in a legally bind- N o 170/83 also did — an express reference ing form by Regulations N o 170/83, to Annex VII so far as concerns the defini- N o 172/83 and N o 3760/92. tion of the needs safeguarded by the objec- tive of stability of fishing activities (see points 15 and 20 above). This, however, is simply a traditional 'stylistic' reference which could have been omitted without any practical effect on the rules laid down by Regulation N o 3362/94 and by future annual Those regulations incorporated, inter alia, i m p l e m e n t i n g regulations. the principle of safeguarding relative stability of the activities pursued — including the specific needs of the regions whose inhabit- ants are particularly dependent on fishing and ancillary industries — which is the crite- rion for the allocation among the Member States of the volume of catches available to the Community. Consequently, if the allocation to the United Kingdom of the quotas relating to the stocks for 1995 was the result of a complex calcula- tion based, at least in part, on the Hague Preferences, 55 it is equally true that the Council carried out that allocation not in

63. The fourth question referred for a pre- 56 — See J.-L. Dewost, Les pouvoirs discrétionnaires du Conseil liminary ruling by the High Court goes to des ministres, in Discretionary Powers of the Member States the crux of the problem concerning the lim- in the Field of Economic Policies and their Limits under the EEC Treaty (edited by J. Schwarze), Baden-Baden, 1988, its on the discretionary power of the Com- p. 165, in particular at p. 166. munity institutions, raised by the applicant 57 — See the Opinion of Advocate General Lagrange in Joined Cases 15/59 and 29/59 Société Métallurgique de Knutange v organisations in the main proceedings. High Authority [1960] ECR 1, 11, in particular at p. 13.

I-709

OPINION OF MR LA PERGOLA — CASE C-4/96

Still according to the Court's case-law, 'when the implementation by the Council of the 66. N I F P O does not contest the legality of agricultural policy of the Community the aforesaid objectives pursued by the involves the need to evaluate a complex Council through the regulation now under economic situation, the discretion which it challenge. has does not apply exclusively to the nature and scope of the measures to be taken but also to some extent to the finding of the basic facts inasmuch as, in particular, it is open to the Council to rely if necessary on general findings. In reviewing the exercise of such a power the Court must confine itself O n the other hand, N I F P O invokes the ille- to examining whether it contains a manifest gal, illogical and inadequate nature of the error or constitutes a misuse of powers or means employed to pursue those objectives: Regulation N o 3362/94 is thus, it argues, invalid as being contrary to the principles of the common fisheries policy (including the 58 — Judgment in Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others v Fattoria Autonoma Tabacchi and Donatab [1994] ECR I-4863, paragraph 42 (emphasis added). See also the judgments in Case 40/72 Schroeder v Germany [1973] ECR 125, paragraph 14; Case 138/78 Stoking v Hauptzollamt Hamburg-Jonas [1979] 59 — Judgment in Case 138/79 Roquette Frères v Council [1980] ECR 713, paragraph 7; Case 179/84 Bozzetti v Invemizzi ECR 3333, paragraph 25 (emphasis added). Sec also the and Minutero del Tesoro [1985] ECR 2301, paragraph 30; judgments in Case 166/78 Italy v Council [1979] ECR 2575 Case 265/87 Schräder v Hauptzollamt Gronau [1989] and in Case C-122/94 Commission v Council [1996] ECR 2237, paragraph 22; Case C-350/88 Delacre and Oth- ECR I-881, paragraph 18. ers v Commission [1990] ECR I-395, paragraph 32; and 60 — Judgment in Crispoltoni, cited above in footnote 58, para- Case C-331/88 The Queen v Minister for Agriculture, Fish- graph 43. See also the judgment in Joined Cases C-267/88 eries and Food and Secretary of State for Health, ex parte to C-285/88 Wuidart and Others [1990] ECR I-435, para- Fedesa and Others [1990] ECR I-4023, paragraph 14. graph 14.

68. O n the other hand, judicial review by the Court is directed at the legality, not the appropriateness, of measures the validity of Consequently, in 1994 the Council ought to which is at issue: 63 it seems to me that this is have disapplied the Hague Preferences and the sense in which the reference in the confined itself to calculating the national Court's case-law to the correspondence quotas on the basis of the allocation keys (in between the Council's discretionary power which those preferences, it is claimed, had and the political responsibilities which the already been incorporated) or ought, at any Treaty rules confer on it in agricultural mat- rate, to have recalculated those preferences, ters is to be understood. which dated back 14 years and thus no longer constituted a current response to the specific requirements of the protected fishing communities. 61 — It should be borne in mind, in this regard, that the Irish Government's Development Programme for coastal fisher- ies, under which the Hague Preference system was intended to ensure the continued and progressive development of the fishing industry in Ireland, came to an end in 1979. After that date, however, both the Commission (in its communi- cation of 1980 and in the quota proposals for subsequent years) and the Council (through the adoption of Regula- tions N o 170/83 and N o 3760/92, as well as the annual regulations from Regulation N o 172/83 to that here in dis- pute) have substantially continued to follow the parameter of doubling the fishing catches in 1975 (which was taken over by the abovementioned programme as its own objec- 67. The arguments of the applicant organisa- tive). tions in the main proceedings do not seem to 62 — See footnote 29 above and the portion of the text relating thereto. me to be entirely lacking in persuasive force. 63 — See M. Waelbroeck and D. Waelbroeck, Article 173, in J.-V. They cause us to reflect on the actual impact Louis, G. Vandersanden, D. Waelbroeck and M. Waelbro- eck, La Cour de Justice. Les actes des institutions, Brussels, which the complex set of rules here under 1993, (2nd edition), Vol. 10, p. 97, in particular at p. 166.

The Council's political decision to retain in abstract terms, to be inappropriate for unchanged — despite the passage of time, the pursuing the ends which must justify its variations which had occurred in the compo- adoption. sition of fish resources and the inevitable developments in the socio-economic land- scape of the individual Member States — the system for allocation of the catches available to the Community finalised in 1983 thus necessarily remains outside the scope of However, I take the view in this case that it review by the Court. is necessary to leave aside any examination into whether Regulation N o 3362/94 is invalidated by the defect of illegality which would result from the measure's abstract unsuitability in relation to the objectives pursued by the Community legislature. 69. What, on the other hand, is to be said of Here, the regulation under consideration the legality of Regulation N o 3362/94 and its does not, even in concrete terms, infringe appropriateness in regard to the objectives either the principle of non-discrimination or which the Council intended to pursue? The that of proportionality, as I shall explain aforesaid case-law must be borne in mind. below. For the regulation in question to be invalid, it is not sufficient that it has actually resulted to some extent in disparity of treatment between Community producers, or imposed on the economic operators concerned heavy burdens in relation to the objectives pur- 70. I take the view, first of all, that the regu- sued. 64 lation under consideration does not intro- duce arbitrary differences in treatment between fishermen in Northern Ireland (according to the phrase used by N I F P O ; to be more precise, fishermen in the northern parts of the United Kingdom) and those in The criterion forged by the Court in its case- Ireland. law is more complex: in the present case, the Council has a political responsibility and will exceed its discretionary power only in so far as the provisions specifically adopted which discriminate or infringe the principle of pro- portionality are attributable to a manifest From that angle, N I F P O criticises the sys- error committed by that institution in evalu- tem of Hague Preferences — incorporated, at ating the effects of the regulation, at the time least implicitly, in Regulations N o 3760/92 when it adopted it. The measure will thus be and N o 3362/94 — and questions the justifi- rendered unlawful because it proves, already cation for the two different quantitative parameters laid down therein, which, accord- ing to the Commission and the Council, must be respected if the vital needs of the 64 — See the judgment in Crispoltoni, cited above in footnote 58, at paragraphs 44 to 46. communities concerned are to be satisfied.

72. With regard to the alleged breach of the 71. It seems to me that, on closer scrutiny, principle of proportionality, it is necessary the allegation here under consideration is first of all to examine whether the provisions based on a premiss which has not at all been of the contested regulation are appropriate established, namely the comparability of the and necessary in relation to the objective of situations of the communities dependent on rational and responsible exploitation of fish fishing in Ireland and the northern parts of resources. the United Kingdom. Consider the wording of Annex VII: in that measure, the Council expressed its intention to apply the provi- 65 — Once it has been accepted that the Hague Preferences are sions of the common fisheries policy to be not contrary to the prohibition of discrimination between established in particular so as to secure the producers in the Community, they clearly do not become discriminatory through the fact of having been relied upon development of the Irish fishing industry and applied in addition to the allocation keys, the validity and proper application of which are not disputed by and, only concurrendy, to take account of NIFPO (see point 19 above). the specific vital needs of other economically 66 — According to John Farnell and James Elles, officials of the European Commission, T h e reasons behind the different disadvantaged coastal regions as well. The treatment of the regions concerned — a nearly blank situations of economic dependence on fish- cheque for Greenland, a growth target for Ireland, and a minimum guarantee for the northern United Kingdom ing in the two Member States were therefore — were the various stages of development reached by their fishing industries, on the one hand, and the impact on other not identical in the eyes of the Community Community fishermen of granting preferences in each case, on the other. The Scottish fishing industry was long- legislature. That evaluation justified the law- established, sophisticated, and, some would say, already suf- ful allocation of preferential rights differing fering from severe overcapacity; the Irish industry was much more recent and still undergoing considerable expan- in their extent. sion; that in Greenland was in its infancy, although already a major source of local income. More important, however, was the relative inconvenience of each preference. In crude terms, the guarantees offered to Greenland would only seri- ously affect the German deep sea fleet, and those offered to Ireland would affect parts of the French, Dutch and British fleets. Similar treatment for the northern United Kingdom, particularly off the east coast, would, on the other hand, substantially alter the fishing prospects of most Member States in the Community, and in particular those of France and Denmark, the two most important rivals of the United Kingdom in terms of volume of catches. N o such revolu- tion could be contemplated in any serious attempt to arrive This conclusion — which makes it unneces- at a Community settlement on catch quotas.': The search for a common fisheries policy, Aldershot, 1984, pp. 109 and sary to examine the issue of the alleged 110. See also Wallace, cited above in footnote 15, pp. 532 incorporation of the particular needs of the and 533.

73. It remains, therefore, to be considered whether Regulation N o 3362/94 is propor- tionate, as it ought to be, to the objective of relative stability of fishing activities. As the The truth is that, as the two Governments Court has ruled (with reference to Regu- involved have observed, the application of lation N o 170/83), 'that requirement of rela- Hague Preference by Regulation N o 3362/94 tive stability must be understood as meaning did not involve an arbitrary increase in that in that distribution each Member State is TACs for the two stocks, which makes to retain a fixed percentage', 68 'determined sense. The preference mechanism presup- essentially on the basis of the catches from posed rather that the Community share of which traditional fishing activities, the local TACs would be lower than the 'safeguard populations dependent on fisheries and levels'; apart from this, the mechanism con- related industries of that Member State ben- cerns, in any case, only the allocation among efited before the quota system was estab- Member States of a TAC determined in lished'. 69 advance.

75. A further point: in order to claim that Regulation N o 3362/94 failed to satisfy the 76. NIFPO's alternative argument is that the requirement of relative stability, it would regulation here under consideration is at have to be shown that the Member State in variance with the principle of proportional- question was not guaranteed maintenance of ity also by reason of the fact that in recent the fixed percentage determined by the years Ireland had not fully used up the Council in relation to each of the two rel- stocks for which it had sought and obtained evant stocks (irrespective of where they were the benefit of Hague Preference and succes- fished). sively availed itself of those quotas for the purpose of swaps with other Member States, as Article 9 of Regulation N o 3760/92 per- mits. By those means, the benefits invoked by the Irish Government were — N I F P O infers — unjustifiably extended to categories of operators other than those originally pro- Otherwise, whether in the text of Regulation tected. N o 3760/92 or in the Court's case-law, there is nothing to support the assertion that the objective of relative stability must also be satisfied at the level of the individual ICES geographical zones, as the applicant organi- sations in the main proceedings claim. That argument, however, is untenable. The swaps referred to are made against the corre- sponding catch volumes for other stocks. In addition, the Hague Preferences — although they become specifically operative in relation For that reason, it seems to me to be irrel- to the size of the Community share of the evant that the quotas allocated to the United annual TAC for individual fish stocks — are Kingdom as a whole for the stocks present in not bound to individual stocks. Let us there- the Irish Sea (including, in particular, cod fore assume that the Irish fleet does not and whiting) decreased, after 1989, to a directly exhaust its own annual quota of greater extent than the overall Community whiting for Area VIIa — for which it in share of TACs for those same stocks, as theory invoked and obtained preference —

I take the view that, in effect, precisely the 77. I accordingly propose that the Court's opposite of what the applicant organisations answer to the fourth question referred in this in the main proceedings argue happens to be case should be that the fixing of cod and true. The swaps under Article 9 of Regu- whiting quotas for the United Kingdom in lation N o 3760/92 may even promote greater Area Vila pursuant to Article 3 of Regu- relative stability of fishing activities, leaving lation N o 3362/94 was compatible with the the Member States some freedom of action common fisheries policy, including the sys- in regard to the definitive optimum alloca- tem established by Regulation N o 3760/92, tion of the national fleet's fishing effort for and with the principle of proportionality. the year in question, on the basis of the spe- cific needs of the sector. Swaps thus consti- tute what may be described as a 'safety valve' for the system, providing it with a degree of flexibility. 70 V — Answer to the fifth question submitted for a preliminary ruling 70 — See the judgment in Case 46/86 Romkes, cited above in footnote 43, paragraph 18. In rejecting the argument of Mr Romkes, a Dutch fisherman who was the plaintiff in the main proceedings in that case, to the effect that the Council had breached the requirement of relative stability by allo- cating to other Member States excessive quotas of the stock in question, which were subsequently used up only in part, the Court emphasized the observations of the Commission, according to which the TAC disputed by Mr Romkes had 78. In the light of the affirmative answer to been fixed at a level much higher than that justified from the biological point of view precisely in order to increase the fourth question, the fifth question the catch opportunities for Dutch fishermen, since it could easily be foreseen that some States would not have referred by the High Court for a preliminary exhausted their quotas, making them the subject of swaps. ruling is devoid of purpose.

(4) Having regard to all the other circumstances, the fixing of the said quotas by the Council was compatible with the common fisheries policy, including in particular Council Regulation (EEC) N o 3760/92, and with the principle of proportionality.

(5) In the light of the affirmative answer to the fourth question, the fifth question, concerning the existence and conditions of entitlement for the applicants to claim damages against the respondent national authority in the event of the fixing of the above quotas by Regulation (EC) N o 3362/94 being invalid, is devoid of purpose.

I-717