C-206/97

3. Fishing in the waters of the Baltic Sea is governed by the International Baltic Sea 5. The TACs for cod during 1997 were fixed at the 22nd session of the IBSFC held in Warsaw from 16 to 20 September 1996. * Original language: French. Recommendation No 4 4adopted at that 1 — OJ 1997 L 66, p. 1, 'the contested regulation'. 2 — The convention known as 'the Gdansk Convention' (here- session states that the TAC for cod in the inafter 'the Convention'), to which the Community acceded Community fishing zones must not exceed under Council Decision 83/414/EEC of 25 July 1983 on the accession of the Community to the Convention on fishing 109 600 tonnes. and the conservation of the living resources in the Baltic Sea and the Belts, as amended by the Protocol to the Conference of the Representatives of the States Parties to the Conven- tion signed in Warsaw on 11 November 1982 (OJ 1982 L 237, p. 4). The Convention entered into force with respect 3 — Articles IX to XI of the Convention. to the European Econo. 4 — Annex 3 to the application.

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Regulation (EEC) No 3760/92 9. In Article 3(g) of the basic regulation 'Community fishing opportunity' is defined as 'the fishing opportunity available for the Community in Community fishing waters, plus the total of the Community fishing 6. This Council regulation establishes a opportunities outside the Community fish- Community system for fisheries and aqua- ing waters, less the total of the fishing culture. 5 availabilities allocated to third countries'.

7. Article 8(4) of the basic regulations provides: Article 121(1) of the Act of Accession of the Kingdom of Sweden 6

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opportunities in excess of 50 000 tonnes, Regulation No 390/97 the Swedish share shall be 40.000%'. The note also states: 'These allocations do not take account of the continued transfer of quotas from Sweden to the present Member 15. Article 2 of the contested regulation States of the present Union, resulting from provides that TACs 'for stocks or groups of the 1992 EEA arrangements'. stocks to which Community rules apply and the share of these catches available to the Community are hereby fixed for 1997 as set out in Annex I'.

12. Article 121(2) provides: 'The shares 16. In Annex I the TAC for cod in Zone III allocated to Sweden shall be set in accor- b, c, d is 112 452 tonnes. The quantity dance with Article 9(4) of Regulation allocated to the Kingdom of Sweden is (EEC) No 3760/92...'. given in that Annex as 38 860 tonnes. 10

'Compensation cod'

13. Under that provision, shares were allo- cated in respect of 1995 and 1996 by Regulations (EC) No 3362/94 8 and 17. During the accession negotiations, con- No 3074/95 9 respectively. flicting interests became apparent regarding the fixing of Sweden's share of Community fishing opportunities for cod.

19. At the session of the Council held between 25 February and 1 March 1994, the Council decided to record the following 22. In 1997 the Community obtained declaration in its minutes: 11 2 852 tonnes of 'compensation cod', 900 tonnes from Estonia, 127 tonnes from Latvia and 1 825 tonnes from Lithuania. That quantity was shared between the Kingdom of Denmark (69% = 1 968 tonnes) and the Federal Republic of Ger- 'Baltic cod many (31% = 884 tonnes). Each share was then added to the TACs available to the Community which had been allocated, in accordance with their respective formulas, to the Kingdom of Denmark (a total of The Council and the Commission will 49 494 tonnes) and the Federal Republic of acquire additional fishing rights of cod Germany (a total of 21 638 tonnes). amounting to any allocation to Sweden beyond 35.037%. The additional quotas will be allocated between Germany and Denmark'. 12 23. The total amount of the TACs which, according to Annex I to Regulation No 390/97, is 112 452 tonnes, is therefore made up of the 109 600 tonnes decided by 20. Pursuant to that declaration, the Com- the IBSFC and the 2 852 tonnes of 'com- munity bought 'compensation cod' from pensation cod'. the three Baltic States in respect of 1995, 1996 and 1997.

21. In 1995 the cod which could be fished in the waters of the Baltic States was shared I I— The action for annulment between the Kingdom of Denmark and the Federal Republic of Germany. In 1996 the additional quantity acquired by the Com- munity could be fished in Community 24. In support of its action, the Kingdom of Sweden claims that the allocation for 1997 of cod in Zone III b, c, d, as indicated in the 11 — Hereinafter referred to as 'the 1994 declaration'. 12 — Declaration recorded in the minutes of the 1733rd session contested regulation, is not in accordance of the Council held in Brussels. with Article 121(1) of the Act of Accession,

27. The legality of the contested regulation 30. Likewise, the 1994 declaration, therefore depends on whether or not the although expressly approved by the King­ formula contained in Article 121(1) of the dom of Sweden, cannot derogate from Article 121(1) of the Act of Accession if it is established that the formula allocated to 13 — According to the Council, the Kingdom of Denmark and the Federal Republic of Germany consider that the share Sweden is applicable without distinction to which was finally allocated to the Kingdom of Sweden did any quantity of cod acquired by the Com­ not accurately reflect the traditional fishing arrangements in the Baltic Sea. munity in the relevant zone.

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33. The meaning of the relevant provisions of the contested regulation is not in doubt since, in Annex I to the regulation, the TAC for European Community cod in Zone III

14 — Page 1 of the Council's answers to the questions put to it 36. The need to provide compensation, by the Court. which lay behind the decision to acquire 15 — The Court has consistently held that '... declarations recorded in minutes are of limited value, since they cannot additional fishing rights, might also arise if be used for the purpose of interpreting a provision of Article 121(1) laid down a formula applic- Community law where no reference is made to the content of the declaration in the wording of the provision in able to all Community fishing opportuni- question and the declaration therefore has no legal significance' (Case-329/95 VAC Sverge [1997] ECR ties. In that case, fishing rights acquired Ι-2675, paragraph 23). However, it slightly altered this under the 1994 declaration would consti- position of principle when it held that 'inasmuch as it serves to clarify a general concept... a declaration of that tute compensation in absolute terms and kind [contained in a directive] may be taken into not a readjustment of the relative shares of consideration when interpreting that provision' (Case C-368/96 [1998] ECR Ι-7967, paragraph 27). each Member State.

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37. The intent to ensure compensation does Act of Accession, which are in Section II not therefore provide irrefutable proof that entitled 'Access to waters and resources', the Act of Accession should be read in the apply only to internal resources. way the Council and the Commission suggest.

40. The applicant adds that there is no 43. The Commission for its part submits indication that Articles 116 to 122 of the that the term 'Community fishing opportu- nities', which includes fishing opportunities in the waters of a third country and in 16 — According to that method of calculation, the Kingdom of Sweden, which voted against the contested regulation, international waters, cannot be applied to estimates that its share should have been 39 999 tonnes (0.35037 x 50 000 tonnes and 0.4 x 62 452 tonnes — Article 121(1) since that provision does not 2 500 tonnes) (page 6 of the application). cover fishing opportunities resulting from

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agreements concluded with third countries. 47. Section III, 'External resources', com- In that connection, the Commission refers prises two provisions, Articles 124 and to the structure and content of Title V, 125, the objective of which is limited, in Chapter 3, of the Act of Accession. the case of Article 124, to the legal arrange- ments applying upon accession to the fish- ing agreements concluded by the Kingdom of Sweden with third countries and, in the case of Article 125, to the rules concerning the granting by the European Union of a financial contribution to the 'release of 44. Although not free of ambiguity, as the smolt carried out by the competent Swedish submissions made by the various parties authorities'. show, the wording of Article 121(1) and the position which it occupies within the Act of Accession do provide us with some useful guidance for interpretation.

49. Likewise, the Commission's submission that Section II applies only to waters coming under the sovereignty or jurisdic- 46. I agree with the Kingdom of Sweden tion of the European Union, since, by virtue that one cannot conclude from the fact that of Articles 117 and 118, that Section covers Article 121 comes within Section II, enti- access by Swedish vessels solely to those tled 'Access to waters and resources', in waters, does not appear by itself to be other words not in Section III, the title of 'decisive. which is 'External resources', that the formula only applies to the European Community's internal resources and does not cover fishing opportunities resulting from agreements which the Community has entered into with third countries, as the Council and the Commission claim. 50. The reference made in those articles to 'waters under the sovereignty or jurisdic- tion of the Member States of the Union as 17 — The V is in Part 4 of the Act of Accession, entitled at present constituted' is insufficient to 'Transitional measures'. exclude from the scope of Article 121

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56. However, the foregoing considerations relate to the general legal arrangements introduced under Article 121(1) of the Act 53. Although Article 3 of Regulation of Accession and not to its application to No 3760/92 states that the definition it the particular case which is the subject of provides is 'For the purposes of this Reg- the present action, as a close reading of the ulation...', which appears to exclude its table contained in that provision shows. being used to interpret the Act of Acces- sion, such a restriction seems excessive since numerous articles in Section II refer to the basic regulation and to the system introduced under it. 57. The cod with which the Kingdom of Sweden associates 'compensation cod' is that fished in Zone III b, c, d. The table in Article 121 states that that zone is limited

54. Moreover, the conditions relating to a specific sector of the accession of a new 18 — Emphasis added.

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to 'Community waters.' 19 It follows that 60. In other words, is it sufficient for the the formula allocated to the Kingdom of Kingdom of Sweden to show that some or Sweden can only apply to Community all of the 'compensation cod' comes from fishing opportunities within the Commu- Community waters in order for those fish- nity fishing zone, 20 and excludes Commu- ing rights to be accorded it in the propor- nity fishing opportunities outside that zone. tion determined by the formula?

61. It is apparent from the minutes record- ing the conclusions of the fishing talks 58. Article 121(1) of the Act of Accession between the three Baltic States and the thus does not exclude a priori application European Community, which were held in of the formulas for which it provides to 1996, 21 that the 2 852 tonnes of 'compen- fishing zones situated outside Community sation cod' for 1997 result from a transfer: waters unless some contrary indication that of the right of the Member States to restricts its scope, as it does in the present fish for cod in Community waters. case since a territorial limit is set on the initial zone which provides the basis for calculating catches.

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64. The intention of the States signatories Reference zones for fixing the TACs'. 23 to the Act of Accession is confirmed by the The second column determines the refer- lack of justification for drawing a distinc- ence zones used for the purpose of fixing, tion between catches made in Community for each species, the share of catches waters and those made outside those waters allocated to the Kingdom of Sweden. in order to restrict application of the formula contained in Article 121(1) to catches in Community waters.

68. The fact that the Council, in Annex I to the contested regulation, included 'com- 65. There is no apparent reason why, in the pensation cod' in the TAC of the European case of a transfer of resources secured by Community when in the same Annex the the Community, allocation of the share due share of the Kingdom of Sweden was to the Kingdom of Sweden should depend calculated on the basis of a TAC which on the catches being made in Community did not include that resource is not capable waters — quite apart from the fact that it of altering the meaning of the Act of would be difficult to check where catches Accession, which forms part of Community were made in order to apply a differenti- primary legislation. ated system.

66. The purpose of using the term 'Com- 69. It therefore appears that the view munity waters' could only have been to which must prevail is that put forward by make the reference zone indicated in the the Council and the Commission, namely Act of Accession the same as that men- that the formula contained in Arti- tioned in the IBSFC recommendations,22 cle 121(1) applies only to TACs directly which are intended to have legal effects fixed by the IBSFC for the European within the Community, in order to apply to Community in respect of Community the TAC fixed by those provisions the waters, by a recommendation which has formula allocated to the Kingdom of become binding. Sweden.

72. In the light of the foregoing I propose that the Court should:

— dismiss the appeal;

— order the Kingdom of Sweden to pay the costs.

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