C-61/96

SPAIN v COUNCIL

OPINION OF ADVOCATE GENERAL ALBER delivered on 13 November 2001 1

I — Introduction fishing in another, adjacent area, ICES area VIII, which is in the Bay of Biscay. In the first-named areas 48% of the quota is allocated to Spain and 52% to Portugal and in the last-named area 90% is allocated to Spain and 10% to France.

1. The present proceedings concern the extent to which the anchovy catches in certain fishing areas known as ICES areas (ICES = International Council for the Exploration of the Sea), which the Council fixed annually by six regulations for 1996 to 2001, are lawful. In particular, they concern the compatibility of the regulations with the principle of relative stability. Under that principle, regard must be had not only to the stocks of the species concerned, but also to the needs of regions where local populations are especially 3. By judgment of 5 October 1999 in Case dependent on fisheries and related activ- C-179/95, the Court dismissed Spain's ities. action against the same provisions govern- ing anchovy fishing in ICES area VIII, on that occasion for 1995. 2Spain was of the opinion that the quota exchange in 1995 ultimately led to an increase in the quota in area VIII, which was unlawful because it jeopardised relative stability. If an increase in the catch in area VIII had been possible and had that increase had taken place in a 2. The six regulations authorise Portugal lawful manner, Spain should also, in its and France to exchange anchovy fishing opinion, have received a higher quota since opportunities in such a way that part of the it was entitled to a 90% share of the catch quota initially allocated to Portugal for for that area. Spain is of the opinion that ICES areas IX, X, CECAF 34.1.1, which lie the catch should not have been increased, to the west and south-west of the Iberian because the anchovy in the two areas Peninsula, is transferred to France for belong to different, separate stocks, a fact

7. Regulation No 3760/92 deals with the fundamental issues concerning the fisheries sector in the Community. It establishes the I I — Legal framework and facts following measures, for each fishery or group of fisheries: establishment of zones in which fishing activities are prohibited or restricted, limitation of exploitation rates, setting of quantitative limits on catches, limitation of time spent at sea taking (1) The essential features of the fisheries account, where appropriate, of the remote- policy ness of the fishing waters, fixing of the number and type of fishing vessels auth- orised to fish, laying down of technical

5. The Community's policy in the sphere of the conservation and management of 3 —OJ 1983 L 24, p. 1. fishery resources is based on the annual 4 — OJ 1992 L 389, p. 1.

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measures regarding fishing gear and its ent upon fisheries and related industries. 7 method of use, setting of a minimum size or As a result of the Council declaration of weight of individuals that may be caught, 30 May 1980 on the common fisheries and establishment of incentives, including policy, 8the principle of relative stability those of an economic nature, to promote was enshrined in the earlier Regulation more selective fishing, and so on. No 170/83. The fifth to seventh recitals in the preamble to that regulation are ident- ical in wording to the 12th to 14th recitals of Regulation No 3760/92. 910

8. That regulation repeatedly invokes the principle of relative stability with which the present proceedings are primarily con- 10. The 12th to 14th recitals in the pre- cerned. That principle assures the Member amble to Regulation No 3760/92 define the States a fixed percentage share of the principle of relative stability as follows: fishing opportunities, 5but not fixed quan- tities of fish, for marketable species. 6

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OPINION OF MR ALBER — JOINED CASES C-61/96, C-132/97, C-45/98, C-27/99, C-81/00 AND C-22/01

especially dependent on fisheries and 12. Under Article 161 of the Act concern- related activities as decided by the Council ing the conditions of accession of the in its resolution of 3 November 1976, and Kingdom of Spain and the Portuguese in particular Annex VII thereto; Republic and the adjustments to the Treaties (hereinafter 'the Act of Acces- sion'), 13 Spain was granted a TAC share of 90% (and France 10%) for anchovy in ICES area VIII. Pursuant to Article 162 of the Act of Accession, an adjustment of that arrangement was to be adopted before Whereas, therefore, it is in this sense that 31 December 1993 in accordance with the the notion of relative stability aimed at procedure laid down in Article 43 of the must be understood'. EEC Treaty. It was to take effect on 1 January 1996.

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sustainable basis, the Council, acting, Article 8 provides: except where otherwise provided, in accordance with the procedure laid down in Article 43 of the Treaty, shall establish Community measures laying down the conditions of access to waters and resources and of the pursuit of exploitation ' 1 . In accordance with Article 4, the activities. These measures shall be drawn exploitation rate may be regulated by up in the light of the available biological, restricting for the period concerned the socio-economic and technical analyses and volume of catches authorised and, if necess- in particular of the reports drawn up by the ary, the fishing effort. In cases where a Committee provided for in Article 16. limitation of catches is not appropriate, the exploitation rate may be regulated solely by a restriction of the fishing effort.

2. These provisions may, in particular, include measures for each fishery or group of fisheries to: 2. ...

(a) establish zones in which fishing activ- ities are prohibited or restricted; 3. ...

(b) limit exploitation rates;

'1. In accordance with Article 9 of Regu- lation (EEC) No 3760/92, the Member States concerned shall exchange fishing (iv) ... possibilities allocated to them under the conditions referred to in Annex IV point 1.'

(v) ...' Point 1 in Annex IV lays down:

'Measures concerning the exchange of certain fishing possibilities and certain (3) The regulation of quota exchanges authorised catch limits

15. Article 9(1) of Regulation No 3760/92 1. Exchanges of fishing possibilities provides:

1.1. Exchanges between France and Por- tugal will be tacitly renewable for the '1. Member States may, after notifying the Commission, exchange all or part of the fishing availabilities allocated to them.' 15 —OJ 1995 L 71, p. 5.

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16 — OJ 1994 L 363, p. 1. 1 7 —OJ1995 1.74, p. I. 18 — Spain v Council, cited i nfootnote 1.

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OPINION OF MR ALBER — JOINED CASES C-61/96, C-132/97, C-45/98, C-27/99, C-81/00 AND C-22/01

1996 and certain conditions under the fishing opportunities and associ- which they may be fished 19 ('Regu- ated conditions for certain fish stocks lation No 3074/95'), and groups of fish stocks, applicable in Community waters and, for Commu- nity vessels, in waters where limitations in catch are required and amending Regulation (EC) No 66/98 23 ('Regu- — Council Regulation (EC) No 390/97 of lation No 2742/1999') and 20 December 1996 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1997 and certain conditions under which they may be fished 20 ('Regulation No 390/97'),

— Council Regulation (EC) No 2848/2000 of 15 December 2000 fixing for 2001 the fishing opportunities and associ- — Council Regulation (EC) No 45/98 of ated conditions for certain fish stocks 19 December 1997 fixing, for certain and groups of fish stocks, applicable in fish stocks and groups of fish stocks, Community waters and, for Commu- the total allowable catches for 1998 nity vessels, in waters where limitations and certain conditions under which in catch are required24 ('Regulation they may be fished 21 ('Regulation No 2848/2000'). No 45/98'),

24. The TAC in ICES area IX was fixed at 12 000 tonnes in 1996, 1997 and 1998, at 13 000 tonnes in 1999 and at 10 000 tonnes in both 2000 and 2001.

III— Forms of order sought by the parties

22. In each year from 1996 to 1999 a 25. Spain claims that the Court should: precautionary TAC was fixed for both areas. In 2000 and 2001, an analytical TAC was fixed for ICES area VIII and a precautionary TAC for ICES area IX. Pursuant to Article 1 of Council Regulation (1) — in Case C-61/96, annul the point (EC) No 847/96 of 6 May 1996 introduc- concerning anchovy in the Annex ing additional conditions for year-to-year to Regulation No 3074/95, management of TACs and quotas, 30 '[pre- cautionary TACs shall apply to stocks for which no scientifically-based evaluation of fishing possibilities is available specifically for the year in which the TACs are to be — in Case C-132/97, annul the point set; analytical TACs shall apply otherwise'. concerning anchovy in the Annex 32 to Regulation No 390/97, 25 — Regulations Nos 3074/95, 390/97 and 45/98. 26 — Regulations Nos 48/1999, 2742/1999 and 2848/2000. 31 — Council Regulation (EC) No 1446/2000 of 16 June 2000 27 — Regulations Nos 3074/95, 390/97, 45/98 and 48/1999. amending Regulation (EC) No 2742/1999 fixing for 2000 28 — Regulation No 2742/1999. Portugal's quota was 5 220 the fishing opportunities and associated conditions for tonnes. certain fish stocks and groups of fish stocks, applicable in 29 — Regulation No 2848/2000. Portugal's quota was 5 220 Community waters and, for Community vessels, in waters tonnes. Unlike previous years, tins regulation provides that where limitations in catch are required (OJ 2000 L 163, 8 0 % oí that quota may be fished in area VIII. That P. 3). percentage is equivalent to 4 176 tonnes. 32 — This should, more accurately, read 'Annex I' since Regu- 30 — O J 1996 L 115, p. 3. lation No 390/97 has several annexes.

(2) in all the cases, order the Council to pay (1) dismiss the applications as inadmiss- the costs. ible,

26. The Council claims that the Court should: (2) in the alternative, dismiss the appli- cations as unfounded,

(1) dismiss the applications as inadmiss- ible, (3) order Spain to pay the costs. I - 3450

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IV — Arguments of the parties and assess- the Court of 3 May 1996, 15 May 1997, ment 16 March 1998 and 8 March 1999 staying the proceedings in Cases C-61/96, C-132/97, C-45/98 and C-27/99 pending delivery of the judgment in Case C-179/95.

A — Admissibility of the actions

30. The Commission likewise considers those actions inadmissible. Spain is chall- enging only the annual fixing of the total allowable catches. However, those total 28. The Council takes the view that the allowable catches are merely the confirma- actions in Cases C-61/96, C-132/97, tion of the quota exchange established in C-45/98 and C-27/99 are inadmissible. At Regulation No 685/95. The lawfulness of the hearing, it extended that objection to that exchange was confirmed in the judg- include Cases C-81/00 and C-22/01, the ment in Case C-179/95. In the Commis- admissibility of which it had not challenged sion's opinion, only Regulation No 685/95 in the written procedure. and the last phrase of subparagraph (i) of the second paragraph of point 1(1.1) of Annex IV thereto produce legal effects. That regulation and it alone lays down provisions on the common management of the anchovy stocks in ICES areas VIII and 29. It maintains that the actions are IX and on the detailed rules, scope and between the same parties, have the same duration of the quota exchange between purpose and are based on the same pleas in France and Portugal. The subsequent regu- law as in Case C-179/95. They are identical lations, which fix the annual total allow- to Case C-179/95 in so far as the provision able catches, merely confirm the appli- concerning anchovy fishing in ICES area cation of common management of the VIII, which is contained in the annexes to anchovy stocks and of the quota exchange the contested regulations, is identical to and calculate in tonnes the percentages those in Regulation No 746/95, including already fixed in Regulation No 685/95. The the disputed note (3) which the Court contested provisions spell out in detail the declared lawful in its judgment in Case logical consequence of Regulation C-179/95. The admissibility of the actions No 685/95 without adding any new is therefore precluded by the authority of elements. The judgment in Case C-179/95 res judicata attaching to the judgment in decided with the authority of res judicata Case C-179/95. The view that the proceed- on the lawfulness of that regulation, and in ings have the same subject-matter is sup- particular its compatibility with the prin- ported by the decisions of the President of ciple of relative stability.

31. The Spanish Government, on the other 33. The parties in Cases C-61/96, hand, considers the actions admissible. It is C-132/97, C-45/98, C-27/99, C-81/00 and of the view that the judgment in Case C-22/01 are the same as in Case C-179/95, C-179/95 did not answer conclusively the namely Spain (as applicant) and the Coun- question whether the principle of relative cil (as defendant). The actions are also stability was infringed. Moreover, the pres- based on the same submissions. Following ent cases concern Regulations Nos 3074/95, Spain's partial discontinuance by letter of 390/97, 45/98, 48/1999, 2742/1999 and 14 October 1999, they concern the com- 2848/2000, which were not the subject- patibility of the contested regulations with matter of Case C-179/95. To declare the the principle of relative stability.

Article 230 EC makes the admissibility of its action subject only to the condition that the 34. Each action contests a different regu- time-limit for instituting proceedings is lation and seeks its partial annulment in so complied with. far as it regulates anchovy fishing in ICES area VIII. Each of those acts has a different temporal scope. They relate to the success- ive years from 1996 to 2000. The action in Case C-179/95 concerned a regulation for

35. The Council goes a step further in its 33 — Judgment in Joined Cases 172/83 and 226/83 Hoogovens reasoning. It concerns itself not only with Groep v Commission [198J] ECR 2831, paragraph 9, order in Joined Cases 159/84, 267/84, 12/85 and 264/85 the act contested in each case, but also with Ainsworth and Others v Commission [1987] ECR 1579, paragraph 3, and judgment in Joined Cases 358/85 and 51/86 France v Parliament [1988] ECR 4821, paragraph 12; judgments of the Court of First Instance in 34 — Judgment of the Court of First Instance in Case T-162/94 Case T-28/89 Maindiaux and Others v Economic and NMB France and Others v Commission [1996] Social Committee [1990] ECR II-59, paragraph 23, and ECR II-427, paragraphs 37 to 39, and order of the Court Joined Cases T-177/94 and T-377/94 Altmann and Casson of First Instance in Case T-26/96 Lopes v Court of Justice v Commission [1996] ECR II-2041, paragraph 50. [1996] ECR-SC II-1357, paragraphs 14 to 16.

36. On the other hand, however, it should be noted that Regulation No 48/1999 fixed a TAC of 13 000 tonnes for ICES area IX, 37. The decision on the admissibility of the that is, 1 000 tonnes more than in the actions cannot depend on the fact that, previous years. In 2000 and 2001 also, without legal necessity, an identical set of different quantities were fixed from those provisions was adopted for the years from for 1995. Regulation No 2742/1999 fixed a 1996 to 1999 to that adopted for 1995. In TAC of 16 000 tonnes for ICES area VIII, that respect, the regulations adopted for which was then increased to 33 000 tonnes 2000 and 2001 prove that they each by Regulation No 1446/2000. 35 For the constitute a new set of provisions which is first time this was an analytical TAC, to applicable to a specific period and is which the provisions of Articles 3 and 4 of independent in its legal validity of the Council Regulation (EC) No 847/96 of provisions adopted in other years. This 6 May 1996 introducing additional con- suggests that the actions have different ditions for year-to-year management of purposes and must therefore be considered TACs and quotas 3<s were declared inappli- admissible. cable, whereas Article 5 of that regulation was declared applicable. For ICES area IX, a TAC of 10 000 was fixed, of which 5 220 tonnes were allocated to Portugal. It was allowed to fish 3 000 tonnes, that is less than 80%, of that allocation in ICES area VIII within the jurisdiction of France. In this respect also, these are provisions which differ from those of previous years. Regu- 38. The Commission points out that the lation No 2848/2000 again fixed a TAC of quota exchanges between Portugal and 33 000 tonnes for ICES area VIII, again as France were established in Regulation an analytical TAC. For ICES area IX a No 685/95. That regulation provides that quantity of 10 000 tonnes was fixed, of exchanges will be tacitly renewable for the which 5 220 tonnes were allocated to period 1995 to 2002. The question is whether Regulations Nos 746/95, 3074/95, 390/97, 45/98, 48/1999, 2742/1999 and 35 — OJ 2000 L 163, p. 3. 2848/2000 are therefore to be regarded as 36 — OJ 1996 L 115, p. 3. identical sets of provisions.

43. However, against that it must be said that Regulation No 685/95 does not con- tain a complete set of provisions. On the 40. However, the Commission's argument contrary, it needs expanding on. On the that the fundamental rules dealing with the one hand, it merely confers authority on quota exchanges are already laid down in France and Portugal to renew the quota Regulation No 685/95 must be upheld. exchanges. It neither provides for exchange That is why it takes the view that contested nor deals with the question whether the Regulations No 3074/95, No 390/97, permitted renewal is to take place. Both No 45/98, No 48/1999 and No 2742/1999 matters remain subject to the adoption of merely confirm the quota exchanges agreed further provisions. The quota exchanges in Regulation No 685/95, which was between Portugal and France, which are at declared lawful in the judgment in Case issue here, are based on an arrangement C-179/95. concluded at the Council meeting on 22 December 1994. That is clear from the third and fourth recitals in the preamble to Regulation No 746/95. The renewal of those exchanges, which was authorised in Regulation No 685/95, took place for 1995 in Annex I to Regulation No 746/95. Under 'Species: Anchovy', the contested 41. On the other hand, it should be pointed note (3) was included for zone IX, X, out that, in its actions in Cases C-61/96, CECAF 34.1.1, allowing up to 5 008 C-132/97, C-45/98, C-27/99, C-81/00 and tonnes of the precautionary TAC of 6 260 C-22/01, in contrast to the action in Case tonnes allocated to Portugal for that zone C-179/95, Spain is no longer challenging to be fished in the waters of ICES area VIII the lawfulness of Regulation No 685/95. under the sovereignty or within the juris- Consequently, in that respect there is no diction of France. Finally, the provisions in overlap or even identity of purpose between Regulation No 685/95 are also incomplete the actions. in that the quota exchanges in question are

44. In the light of the incompleteness of the provisions in Regulation No 685/95, it falls to Regulations Nos 3074/95, 390/97, 45/98, 48/1999, 2742/1999 and 2848/2000 47. The foregoing observations lead to the to deal with a multiplicity of substantive question regarding the extent to which matters. They fix the level of the TAC for account must be taken of the link, as each individual ICES area and fish species described above, between the content of and allocate quotas for each such species the provisions in Regulations Nos 3074/95, among the Member States. Moreover, they 390/97, 45/98, 48/1999, 2742/1999 and lay down the provision contested by Spain 2848/2000 and that of Regulation that a certain part of the catch allocated to No 685/95. According to the case-law, the Portugal in ICES area IX may be fished in principle of res judicata extends only to the waters of ICES area VIII under the sover- matters of fact and law actually or necess- eignty or within the jurisdiction of France. arily settled by a judicial decision.37 In that Whether this should be seen as fixing a respect, it should be borne in mind that the common TAC for anchovy in ICES areas question regarding the compatibility of VIII and IX, and whether the condition laid Regulation No 685/95 with Community down in Regulation No 685/95 has thus law was definitively settled by the judgment been fulfilled, is a question which goes to in Case C-179/95. the substance of the actions. For the pur- pose of examining the admissibility, it is sufficient to note that that is the situation which Spain is challenging by its various actions. It is a situation which is regulated afresh each year with the fixing of the 48. However, unlike in the proceedings in relevant TAC and the granting of auth- Case C-179/95, in the present proceedings orisation for Portugal to fish a certain quantity of that TAC, which is allocated to it for Area IX, in Area VIII. 17 — Casc C-2S1/89 ¡Uly v Commission |1991| ECR 1-347.

50. In considering the merits of the actions, the plea in law based on infringement of the principle of relative stability, which is put forward in all the cases, must be examined 53. The Council confirms that the anchovy first. stocks in ICES areas VIII and IX are two

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biologically distinct stocks. Nevertheless, it tugal's quota transfer. In support of that does not consider that the fixing of two assertion, it refers to a combined total of TACs, as has in fact taken place, is really the catch quotas distributed in ICES areas necessary since neither stock is jeopardised VIII and IX. and from 1996 to 1999 only precautionary TACs were fixed. There are no legal obstacles to the common management of those two TACs. It was only on account of the relevant provision in Article 161 of the Act of Accession that two separate TACs were fixed for ICES areas VIII and IX. 56. The Commission likewise considers that the principle of relative stability was not infringed. Both TACs for ICES areas VIII and IX were managed in common. However, that made no difference to the distribution of the quotas of the Member States concerned: Spain, Portugal and France. The Commission, too, bases its assessment in this regard on an aggregate 54. By fixing a separate TAC for ICES area view of the quotas distributed for both VIII and allocating 90% of that TAC to areas. Spain, the Council observed the relevant provision in Article 161 of the Act of Accession and the principle of relative stability. In allowing Portugal to fish part of its quota allocated for area IX in ICES area VIII and to exchange it with France, it merely used its margin of discretion in order to achieve the objective of integrating 57. The quota exchange which Spain con- Spain and Portugal into the common tests is expressly authorised under the fisheries policy. provisions of Articles 8 and 9 of Regulation No 3760/92. Moreover, the common man- agement of both TACs does achieve an overall balance of shares.

62. Stability is relative since it guarantees only entitlement to a percentage of the available TAC, but not entitlement to a fixed catch. 43 On the contrary, the catch is variable. That follows from the require- ment to take account of the biological 60. The principle of relative stability situation of the stock concerned. Stability assures the Member States a fixed percen- does not always allow the same catch. tage share of the fishing opportunities for Moreover, it is dependent on the share of marketable species. 38 This refers to a the total allowable catch which falls to the particular species of fish within a specified Community. Only that share, which in part area. 39 As explained in the account of the is established within the framework of legal framework, the principle in question international organisations, is passed on has its origin in Annex VII to the 'Hague as a quota to the Member States. Resolution' of 3 November 1976. As a result of the Council declaration of 30 May 1980 on the common fisheries policy, 40 the principle of relative stability became enshrined in Regulation No 170/83 and ultimately in Regulation No 3760/92. 4 1 42

38 — Romkes, cited in footnote 5, paragraph 17. Confirmed in 63. In the present proceedings, Spain is not Portugal and Spain v Council, cited in footnote 6, paragraph 28. interested in obtaining a specific quantity 39 — Portugal and Spain v Council, cited in footnote 6, of anchovy which it would like to catch in paragraph 28. 40 — OJ 1980 C 158, p. 2. ICES area VIII, as the Council believes. It is 41 — Cited in point 6. 42 — For details of the historical background, see the Opinion of Advocate General La Pergola in NÏFPO and Northern Ireland Fishermen's Federation, cited in footnote 7, 43 — Portugal and Spain v Council, cited in footnote 6, paragraphs 4 to 20. paragraph 28.

interested in securing its share of the infringed is that that principle does not quantity of anchovy made available for guarantee an absolute volume of catches, fishing in ICES area VIII. but only a share of the catches. That share may be affected by an exchange of quotas, as is expressly provided for in Article 9 of Regulation No 3760/92. It may also be affected by the authorisation of quota transfers from the area of allocation to adjacent areas, as was granted in the 64. The Act of Accession of 1985 granted present case in respect of Portugal's Spain a 90% share and France a 10% share anchovy fishing and as has also been for anchovy in ICES area VIII. Pursuant to provided for in respect of herring, hake, Regulations Nos 1275/94 and 685/95, blue whiting, mackerel and monkfish since those shares are taken into account in the the adoption of Regulation No 3074/95. As annual allocation of quotas in accordance the recitals in the preambles to the regu- with the procedure laid down in Article 8 lations indicate, those quota transfers took of Regulation No 3760/92. The quotas place 'in order to ensure a better exploi- allocated to the Member States are then tation of the quotas'. 44 The transfer of the expressed in tonnes. quota allocated to Portugal for ICES area IX to ICES area VIII is therefore not an isolated case, as the Council rightly points out. It took place against the background of a quota exchange agreed between Portugal and France in December 1994 and docu- mented in Annex IV to Regulation 65. In the context of the present proceed- No 685/95. ings, the question which must now be considered is whether that percentage allo- cation is maintained in Regulations Nos 3074/95, 390/97, 45/98, 48/1999, 2742/2000 and 2848/2000, or whether it is infringed by the fact that Portugal is allowed, in note (3) or (2), to fish part of its quota allocated for ICES area IX in ICES area VIII. That would be the case if the provisions in question meant that Spain no longer received 90% of the total allowable 67. A second ground for rejecting the view catch in ICES area VIII and if that adjust- that the principle of relative stability was ment was not justified by a quota exchange infringed is the fact that Spain's overall allowed under Article 8(4) and Article 9 of share in ICES areas VIII and IX taken Regulation No 3760/92. together was not reduced, either propor- tionately or quantitatively, by authori- sation of the quota transfer.45 The Council and the Commission expressly draw atten-

70. That leads to the question whether authorisation of the quota transfer in 68. On the other hand, the view that there favour of Portugal, as granted in the was a breach of the principle of relative disputed note (3) or (2), can be seen as stability is supported by the fact that fixing a common TAC for anchovy fishing authorisation of the quota transfer in ICES areas VIII and IX or at least as increased the catch in ICES area VIII from establishing a common management of 33 000 tonnes to 38 008 tonnes between those TACs. Such an understanding is 1996 and 1999, to 36 000 tonnes in 2000 supported by the fact that the two areas and to 37 176 tonnes in 2001. If Spain's are adjacent to one another. Such an entitlement to 90% of the total allowable understanding of the authorisation would catch is applied to the total anchovy catch also respect the rights of Spain which, as allowed in ICES area VIII by the auth- observed above, suffers no disadvantage if orisation to transfer quotas, then it must be its quotas for ICES areas VIII and IX are held that Spain was not granted 90% of considered together. Moreover, it should be that catch. pointed out that Article 11 in conjunction with point 1.1 (i) in Annex IV to Regu- lation No 685/95 expressly makes the quota exchange at issue here subject to the condition that a common TAC for anchovy is fixed for ICES areas VIII and IX.

72. Nor can that drawback be remedied by assuming a common management of both TACs. That is because the decisive factor in determining the question raised here is the 74. Moreover, the interests of the Spanish fact that it is contrary to the criteria on population which is dependent on anchovy which the fixing of TACs is based to fishing in ICES area VIII are not sufficiently assume that authorising a quota transfer taken into account if the authorised total amounts to fixing a common TAC or catch is increased without at the same time establishing a common management of increasing the share to which Spain is two TACs. According to the 13th recital entitled. That loss cannot simply be offset in the preamble to Regulation No 3760/92, by the simultaneous gain to the Spanish regard must be had to the biological population which is dependent on anchovy situation of the stock concerned and to fishing in ICES area IX, which lies off the the needs of regions where local popu- Galician and Portuguese coast and where, lations are especially dependent on fisheries as a result of the quota transfer, there is less and related activities. It is common ground fishing. Authorisation of the quota transfer that the anchovy stocks in ICES areas VIII cannot therefore be viewed either as fixing and IX are two biologically distinct stocks. a common TAC for ICES areas VIII and IX That fact alone precludes the assumption of or as establishing a common management a common TAC or a common management of those areas. of two TACs, because there is no common scientific basis for such an assumption.

78. Nor, however, are the substantive con- ditions fulfilled either. The rules in question concern the distribution of quotas within the limits of the total allowable catch. However, the quotas have specifically not been amended under the contested regu- lations. The Council and the Commission 77. Nevertheless, application of the provi- expressly draw attention to this point. sion cited in point 75 is precluded simply Portugal was not allocated a quota in ICES by the fact that Spain did not consent to the area VIII. It was merely authorised to fish quota transfer, let alone request it, as part of its quota allocated for ICES area IX required by that provision. A request made in ICES area VIII. That was merely trans- by Portugal and France alone, such as could ferring a quota, not introducing a quota for be inferred from the agreed quota Portugal in ICES area VIII. In that respect, exchange, is not sufficient. That is because, the rules contained in note (3) or (2) in the as observed above, the quota transfer contested regulations cannot be interpreted concerns Spain inasmuch as it alters the as a modification of the principle of relative overall quantity that can be fished in ICES stability or of the quota distribution area VIII without Spain being able to exert effected on the basis of that principle under any influence in that regard. Yet Spain's Article 8(4)(ii) of Regulation No 3760/92. rights under Article 161 of the Accession It must therefore be concluded that those Treaty, as they are recognised in Regu- rules infringe the principle of relative lations Nos 1275/94, 685/95 and the regu- stability.

82. Spain is of the view that the contested provisions infringe the principle of rational and responsible exploitation of resources inasmuch as they increase the TAC for ICES area VIII, which is fixed on the basis of scientific analyses, by the quantity which 80. I therefore conclude that the authori- Portugal is authorised to catch in that zone. sation for Portugal to transfer its quota, This leads to an excessive exploitation of which it was granted for anchovy fishing in fishery resources which has no scientific ICES area IX, to ICES area VIII infringes basis. As the drastic limitation of the TAC the principle of relative stability since it in 2000 by Regulation No 2742/1999 results in Spain not being allocated 90% of shows, the anchovy stock in ICES area VIII the allowable catch for anchovy in ICES is jeopardised by such overfishing. In order area VIII. To that extent, the contested for France to be lawfully allocated the 4 600 regulations must therefore be annulled. tonnes, the total allowable catch in that

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area would have had to be increased to which the Council enjoys in the context of 46 000 tonnes. However, that would have agricultural policy. amounted to an excessive exploitation of resources. A total of 37 176 tonnes was made available for fishing in ICES area VIII in 2001.

(b) Assessment

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87. In the context of fisheries policy, the 89. The authorisation given to Portugal to Council has wide discretion in the evalu- fish part of its quota allocated for ICES ation of complex economic situations. That area IX in ICES area VIII likewise does not includes the fixing of TACs and adopting of constitute a misuse of powers. Spain has rules in connection with them. Judicial not adduced any factors, and in particular review is confined to examining whether has not produced any scientific analyses, there has been a manifest error or misuse of which support the assertion that that auth- powers in the exercise of that discretion or orisation led to overfishing in ICES area whether the bounds of that discretion have VIII. The fact that a TAC of 33 000 tonnes clearly been exceeded. 47 was fixed annually for that area and that it even constituted, at least in 2000 and 2001, an analytical TAC and not merely, as in previous years, a precautionary TAC, does not support Spain's argument. On the contrary, it suggests that, at the permitted rate of exploitation, that is, including the quota transfer which Portugal was auth- orised to make, the stock was not jeopard- ised. The second plea in law should there- fore be rejected.

(b) in Case C-132/97, annul the point concerning anchovy in Annex I to Council Regulation (EC) No 390/97 of 20 December 1996 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1997 and certain conditions under which they may be fished;

(c) in Case C-45/98, annul the point concerning anchovy in Annex I to Council Regulation (EC) No 45/98 of 19 December 1997 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1998 and certain conditions under which they may be fished;

(d) in Case C-27/99, annul the point concerning anchovy in Annex I to Council Regulation (EC) No 48/1999 of 18 December 1998 fixing, for I - 3466

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certain fish stocks and groups of fish stocks, the total allowable catches for 1999 and certain conditions under which they may be fished;

(e) in Case C-81/00, annul note (2) relating to stocks of 'Anchovy, Zone: IX, X, CECAF 34.1.1', in Annex I D to Council Regulation (EC) No 2742/1999 of 17 December 1999 fixing for 2000 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required and amending Regulation (EC) No 66/98;