C-179/97

3. The Commission denies, first, that the Agreement is applicable because it has been 2. The Spanish Government makes the com- 'multilateralised' in the meantime and, as it plaint against the Commission that Article was valid only up to the date of multilater- 4a(6) of the implementing Regulation (EEC) álisadon, that is to say, 31 December 1995, it N o 2868/88, which was added by Regulation is no longer applicable. The Commission also (EC) N o 494/97, * docs not require the con- contends that the provision in question repro- sent of the flag State for inspectors of other duces the terms of the Agreement and of the Contracting Parties to board a vessel for the basic regulation, so that the Spanish Govern- purpose of inspection in port and to remain ment's complaint is unfounded. on board during the inspection. According to the Spanish Government, a requirement for such consent is provided for, first, in an 2 — Council Decision 95/586/EEC of 22 December 1995 on the conclusion of the Agreement constituted in the form of an agreed minute, an exchange of letters, an exchange of notes and the Annexes thereto between the European Community and Canada on fisheries in the context of the N A F Ό Con­ * Original language: German. vention (OJ 1995 L 327, p. 35). 1 — Commission Regulation (EEC) N o 2868/88 of 16 September 3 — Council Regulation (EEC) N o 1956/88 of 9 Juno 1988 1988 laying down detailed rules for the application of the adopting provisions for the application of the scheme of joint Joint International Inspection Scheme adopted by the North- international inspection adopted by the Northwest Atlantic west Atlantic Fisheries Organisation (OJ 1988 L 257, p. 20, Fisheries Organisation (OJ 1988 L 175, p. 1), amended by modified by Commission Regulation (EC) N o 494/97 of 18 Council Regulation (EC) N o 3067/95 of 21 December 1995 March 1997 (OJ 1997 L 77, p. 5). (OJ 1995 L 329, p. 1).

(ii) Where justified, the inspector of the Con- tracting Party of the vessel concerned shall, where duly authorised to do so, require the vessel to proceed immediately to a nearby port, chosen by the master, ... for a thorough inspection under the authority of the flag State and in the presence of a N A F O inspector from any 5. The Commission claims that the Court other Contracting Party that wishes to should: participate. ...

— dismiss the action;

4 — It should be observed that this Agreement was concluded after an incident at the beginning or 1995. The Spanish vessel 'ESTAI', which was suspected by Canadian inspectors of using prohibited fishing methods in international waters, was boarded by them and diverted to a Canadian port. The Agreement was subsequently concluded for the purpose of closer and more effective cooperation. However, the events — order the applicant to pay the costs. involving the 'ESTAI* are not the subject of this action.

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(iv) Where a vessel is required to proceed to Article l(10)(iv) provides: port for a thorough inspection pursuant to paragraph (ii) above, a N A F O inspector from another Contracting Party may, sub- ject to the consent of the Contracting Party of the vessel, board the vessel as it is proceeding to port, may remain on board the vessel as it proceeds to port and may be present during the inspection of the vessel in port. 'Where a vessel is required to proceed to port for a thorough inspection pursuant to para- graph (ii), a N A F O inspector from another Contracting Party may, subject to the consent of the Contracting Party of the vessel, board the vessel as it is proceeding to port, may remain on board the vessel as it proceeds to port and may be present during the inspec- Ï tion of the vessel in port.'

10. In reply to this argument, the Kingdom 2, The Commission shall decide, with the of Spain argues that the Agreement is binding agreement of the Contracting Party respon- on the Community pursuant to Article 228(7) sible for the vessel, if a Community inspector of the EC Treaty. Subsequent Community is to remain on board when the vessel is measures must not conflict with the Agree- diverted. The Commission shall also decide ment. Moreover, in the Decision of 22 whether a Community inspector is to be December 1995, the Council approved the present during the thorough inspection of the conclusion of the Agreement on behalf of the suspect vessel in port.' Community. Consequently, the Agreement continued to apply in its original version.

C — Analysis

Whether the Agreement is applicable

11. Under Article 228(7) of the E C Treaty, international agreements concluded by the Community are binding on the institutions of 9. The Commission contends, first, that the the Community and on Member States. In Agreement does not apply to the present dis- order to bring the Community measures in pute, because it has been multilateralised in force at that date into line with the Agree- the meantime and is therefore no longer ment, the Council, by Regulation N o 3067/95,

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13. Article 1(1) of the approval Decision states that the Agreement constituted in the form of an agreed minute, an exchange of letters, an exchange of notes and Annexes thereto between the European Community and 15. Since the Spanish Government alleges Canada is approved and that the text of the infringement of the Agreement and of the acts referred to in the first paragraph is annexed basic Council Regulation, and since both mea- to the Decision. Therefore, part E was not sures contain similar provisions so far as the formally removed. However, the Commis- sion's view seems to be incorrect. It is not clear why an agreement which would have 7 — It should be mentioned once again that the Convention was expired in any case on 31 December 1995 to cease to apply before 31 December 1995 if the N A F O adopted the measures described in the Convention before should have been approved on 22 December then. The N A F O sent a list of measures to its members on 29 September 1995. The list was to take effect 60 days after notification, provided that no objections were raised. According to the information supplied by the panics in this case, this list of measures took effect. 8 — The word 'finally' appears only in the German version, but 6 — Sec the second recital of the preamble to Regulation N o this does not alter the conclusion to which the following 3067/95. observations lead.

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present case is concerned, the question possible, be given an interpretation consistent whether the Agreement applies may be left with the basic regulation. 9 aside in deciding whether the application is substantiated.

16. Consequently, it is now necessary to deter- mine whether the provision in question con- flicts with Council Regulation N o 1956/88, as amended by Regulation N o 3067/95. If so, the Spanish Government's application would have to be allowed. 19. The Commission contends that Article l(10)(iv) includes the requirement for consent only because it regulates the situation where an apparent infringement is found at sea. Since the question of safeguarding the rights of the flag State arises when a vessel is boarded at sea, the consent of that State is necessary for the vessel to be boarded. Accordingly the rule in Article l(10)(iv) was adopted for that pur- pose. The disputed provision of the imple- menting regulation, on the other hand, refers to inspections in port. The consent of the flag 17. First, as the Court has consistently held, State for boarding the vessel in port is not when the wording of secondary Community necessary because the sovereign rights of the legislation is open to more than one interpre- tation, preference should be given as far as possible to the interpretation which renders 9 — See the judgments in Case C-90/92 Dr Treuer [1993] ECR the provision consistent with the Treaty. Like- 1-3569, paragraph 11; Case 38/70 Tradax [1971] ECR 145, and Case C-61/94 Commission v Germany [1996] ECR 1-3989, wise, an implementing regulation must, if paragraph 52,

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flag State can bc effectively protected by other the application of joint international inspec- means. According to the Commission, this is tion schemes. Where such a scheme has been the only possible interpretation of the Agree- established, there is much to be said for laying ment and of the Council Regulation. down the rules in question in chronological sequence. The wording of the Council Regu- lation shows that this was the procedure fol- lowed.

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— to be present during the inspection of the when the vessel proceeds to port. In order to vessel in port. board the vessel at that moment and remain there, the N A F O inspectors dispatched under Article l(10)(ii) require the consent of the flag State.

26. At this point the wording shows that the Commission's arguments cannot be accepted. It is clearly not a question of safeguarding sovereign rights during the inspection of ves- sels at sea. The general structure of the rel- 28. Article 4a(6), added to Regulation N o evant provisions set out above shows that 2868/88 by Regulation N o 494/97, provides their purpose is precisely to regulate what that on arrival at the port of diversion, the happens from the time when the vessel is vessel is to undergo a thorough inspection required to proceed to port to the time when under the authority of the flag Member State the. inspection is carried out. in- thepresence of a N A F O inspector from - any other Contracting Party wishing to take part. It does not appear from the wording of this provision that the consent of the flag State is necessary, as in the case of the basic regula- tion.

32. Therefore the Commission cannot con- vincingly maintain that it laid down a require- ment of consent in Article 4b(2) for all fishing vessels covered by the basic regulation.

'As a result of ... being notified ... of an apparent serious infringement committed by a Community vessel, the Commission, in cooperation with the flag Member State, shall ensure that the vessel is inspected ... .' 33. It must be concluded that Article 4a(6) of Regulation N o 2868/88, added by Regulation N o 494/97, docs not expressly include the requirement of consent in the basic regulation for the boarding of a vessel by a N A F O inspector and for his remaining on board This becomes meaningful when the further during an inspection in port. course of action is described in Article 4b(l), when Community inspectors suspect 'that a fishing vessel flying the flag of a Contracting Party' has committed a serious infringement. Under Article 4b(2), the Commission may then decide, with the agreement of the Con- tracting Party responsible for the vessel, whether a Community inspector is to remain on board when the vessel is diverted. 34. However, the question arises whether the disputed provision can be construed in such a way that it is compatible with the provi- sions of the Agreement and the basic regula- tion. In the present case this would only be possible if, in the sentence: 'On arrival at the port of diversion, the suspect vessel shall be the subject of a thorough inspection carried out under the authority of the flag Member State, which may be attended by a NAFO 31. However, this can only mean that Articles inspector from any other Contracting Party 4a and 4b do not regulate different situations wishing to take part', the words 'which may depending on whether the vessel is at sea or be attended' can be construed as implying the in port, but differentiate according to whether consent of the flag State.

36. However, there is no question here of construing Article 4a(6), by means of the words 'which may be attended', in such a way as to conform with the basic regulation. 39. The position would be the same if the It is clear from the general structure, the implementing regulation were examined by wording and the context of the basic regula- reference to the Agreement between the Com- tion that it was the express intention of the munity and Canada, because the provisions Contracting Parties to allow other inspectors of the latter are the same as those of the basic to board the vessel in port and to remain regulation. However, for the same reason it is during an inspection only if the flag State unnecessary to decide whether the Agreement gives prior consent. This very important con- is still in force. n dition, which is fundamentally intended to safeguard the sovereign rights of the flag State, cannot be inferred from the words 'which may he attended'. O n the contrary, those words refer to the situation where another Contracting Party exercises its right to dis- patch an inspector on the basis of events at Costs sea.

37. This is why it cannot be presumed that 40. Under the first subparagraph of Article use of the words 'which may be attended' is 69(2) of the Rules of Procedure of the Court intended to imply the consent of the flag State. of Justice, the unsuccessful party is to be Ultimately this conclusion is supported by ordered to pay the costs if they have been the Commission's own assertion that Article applied for in the successful party's pleadings. 4a(6) does not include a requirement of con- sent and that, on the contrary, such require- ment is set out in Article 4b(2). 11 — On this question sec paragraphs 12 and 13 above.

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