C-179/97

JUDGMENT OF 2. 3. 1999 — CASE C-179/97

JUDGMENT OF THE COURT 2 March 1999 *

In Case C-179/97,

Kingdom of Spain, represented by Rosario Silva de Lapuerta, Abogado del Estado, acting as Agent, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard E. Servais,

applicant,

v

T H E COURT,

composed of: G. C. Rodriguez Iglesias, President, P. J. G. Kaptcyn, J.-P. Puissochet and P. Jann (Rapporteur), Presidents of Chambers, C. Gulmann, J. L. Murray, D. A. O. Edward, H . Ragnemalm, L. Sevon, M. Wathelet and R. Schintgcn, Judges,

Advocate General: S. Alber, Registrar: D. Louterman-Hubeau, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 10 June 1998,

after hearing the Opinion of the Advocate General at the sitting on 16 Tulv y 1998,

3 In that context, a joint international inspection programme was adopted by the N A F O Fisheries Commission on 10 February 1988. That programme was declared applicable in the Community by Article 1 of Council Regulation (EEC) N o 1956/88 of 9 June 1988 adopting provisions for the application of the scheme of joint

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international inspection adopted by the North-West Atlantic Fisheries Organisation (OJ 1988 L 175, p. 1) and is set out in an annex thereto.

4 Pursuant to Article 4 of Regulation N o 1956/88, which provides that detailed rules for the implementation of that regulation are, if necessary, to be adopted in accor- dance with a special procedure, the Commission adopted Regulation N o 2868/88.

5 O n 20 April 1995 an agreement was concluded between the European Community and Canada on fisheries in the context of the N A F O Convention (hereinafter 'the Agreement'). This was constituted in the form of an agreed minute (with annexes), an exchange of letters and an exchange of notes, and was approved by Council Decision 95/586/EC of 22 December 1995 (OJ 1995 L 327, p. 35). Point 11.9(e) of Annex I to the agreed minute of the Agreement, entitled 'Proposal for improving fisheries control and enforcement', provides as follows:

(iv) Where a vessel is required to proceed to port for a thorough inspection pur- suant to paragraph ii above, 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 inspection of the vessel in port.

?

6 O n 21 December 1995 the Council adopted Regulation (EC) N o 3067/95 amending Regulation N o 1956/88 (OJ 1995 L 329, p. 1; hereinafter 'the Council Regulation'). With the object of implementing a number of the Agreement's provisions, that regulation inserts a new point — point 10 — in the annex to Regulation N o 1956/88 which provides, in terms virtually identical to those of point 11.9(e) of Annex I to the agreed minute of the Agreement, as follows:

c

(i) If a N A F O inspector cites a vessel for having committed, to a serious extent, an apparent infringement as listed in paragraph 9, the Contracting Party of the

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7 Regulation N o 494/97 inserted inter alia Articles 4(a) and 4(b) in Regulation N o 2868/88. Article 4(a) provides:

' 1 . Where the appropriate authorities of the flag Member State are notified, pur- suant to paragraph 10(iii) of the Annex to Regulation (EEC) N o 1956/88, by a N A F O inspector of an apparent serious infringement, as listed in paragraph 9 of the Annex to Regulation (EEC) N o 1956/88, committed by a fishing vessel flying its flag or where the Commission receives such information, these appropriate authorities and the Commission shall immediately inform each other thereof.

5. Following the notification of his results and if the apparent infringement is serious, in accordance with the definition of infringements in paragraph 9 of the Annex to Regulation (EEC) N o 1956/88, the appropriate authority of the flag Member State shall, if the situation requires, within 24 hours, itself require or authorise the duly authorised inspector to require the vessel to proceed to a des- ignated port in accordance with paragraph 10(ii) of the Annex to Regulation (EEC) N o 1956/88.

In the event of a diversion, the duly authorised inspector shall take all necessary measures to ensure security and continuity of the evidence including, as appro- priate, sealing the vessel's hold for eventual dockside inspection.

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s The Kingdom of Spain argues that Article 4(a)(6), first sentence, of Regulation N o 2868/88, as amended, under which '[o]n 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 N A F O inspector from any

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other Contracting Party -wishing to take part' is unlawful. Those words indicate that a N A F O inspector, whichever contracting party has appointed him, may attend the thorough inspection carried out at the port of diversion without there being any need to obtain the consent of the authorities of the flag Member State. By contrast, point 10(iv) of the annex to the Council Regulation and point II.9(e)(iv) of Annex I to the agreed minute of the Agreement provide that 'the consent of the Con- tracting Party of the vessel' is required in such circumstances.

9 The Kingdom of Spain submits that the contradiction between the Council Regula- tion and Regulation N o 2868/88, as amended — that is to say, between the basic regulation and the implementing regulation — renders the latter void. It therefore seeks annulment of Regulation N o 494/97 in so far as it inserts Article 4(a)(6) in Regulation N o 2868/88.

io According to the Spanish Government, the contradiction between the wording of the contested provision and that of point 10(iv) of the annex to the Council Regula- tion is manifest. It points out that an implementing regulation adopted under an enabling provision in a basic regulation may not derogate from the provisions of that regulation.

H According to the Commission, the only reason for the requirement under point 10(iv) of the annex to the Council Regulation and point II.9(c)(iv) of Annex I to the agreed minute of the Agreement that the consent of the contracting party of the diverted vessel be obtained is that both provisions contemplate a situation where there has been an apparent infringement in international waters. In such cases the flag State's consent is necessary because the question of protecting its prerogatives arises. By contrast, the contested provision relates solely to inspections carried out in a port, which cannot raise problems concerning the limits of the flag State's jurisdiction, because that State's own authorities supervise the conduct of the inspection and are therefore in a position to ensure that its prerogatives are respected by means of other procedures. Thus, there is no need for the flag State's consent.

15 The requirement concerning the flag State's consent, relied upon by the Kingdom of Spain, is also laid down in Article 4(b)(2) of Regulation N o 2868/88, as amended.

i6 The Commission also contends that, in any event, there can be no question of the Agreement having been breached since as from September 1995 it no longer applied. The last paragraph of the agreed minute of the Agreement states that 'this agreed minute shall cease to apply on 31 December 1995 or when the measures described in this agreed minute are adopted by N A F O , if this is earlier'. The adoption of the

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measures at issue took place in September 1995 and was the subject of a N A F O recommendation. Thus the agreement became devoid of purpose as from that date and consequently cannot serve as the legal basis for the action brought by the Kingdom of Spain.

SPAIN v COMMISSION

21 That being so, it must be determined whether the contested provision in Regula- tion N o 2868/88, as amended, which is the implementing regulation, is compatible with the Council Regulation, which is the basic regulation.

22 First, the Commission's argument that, in any event, Article 4(b)(2) of Regulation N o 2868/88, as amended, introduced a requirement concerning the consent of the contracting party of the vessel must, as submitted by the Spanish Government, be rejected.

23 O n that point it need merely be observed that, as is clear from Article 4(b)(1) of Regulation N o 2868/88, as amended, Article 4(b)(2) concerns vessels flying the flag of States other than the Member States of the Community. It has no bearing, there- fore, on the outcome of the present dispute and accordingly cannot serve as a basis for the Commission's argument.

24 Next, it is necessaiy to consider the Commission's argument that Article 4(a)(6) of Regulation N o 2868/88, in the amended text of that regulation, is consistent with point 10(ii) of the annex to the Council Regulation and is not therefore ultra vires, even though that provision is silent with regard to the situation contemplated by point 10(iv) of the said annex.

25 The Commission rightly contends that the contested provision is drafted in terms almost identical to those of point 10(ii) of the annex to the Council Regulation. The latter envisages the situation where a vessel suspected of having infringed the N A F O rules undergoes a thorough inspection in a port of diversion and provides for the attendance in such circumstances of an inspector 'from any other Con- tracting Party that wishes to participate' without there being any need to obtain the consent of the flag State. The contested provision, on the other hand, concerns specifically the situation where a thorough inspection is carried out in a port, which

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The plea alleging a contradiction between Regulation N o 2868/88, as amended, and point II.9(e)(iv) of Annex I to the agreed minute of the Agreement

29 The Kingdom of Spain submits that Regulation N o 2868/88, as amended, conflicts with the Agreement and in particular with the provisions of point II.9(e)(iv) of Annex I to the agreed minute thereof. According to the Spanish Government, a N A F O inspector of a contracting party other than the State of the vessel cannot participate in the inspection carried out at the port unless the consent of the flag State is obtained. If consent is withheld, the inspector cannot participate in the thorough inspection, the various stages of which are conducted in the port of diver- sion.

30 It need merely be stated, in response to that submission, that the provisions of point II.9(e)(iv) of Annex I to the agreed minute of the Agreement are framed in terms virtually identical to those of point 10(iv) of the annex to the Council Regulation. Accordingly, the second plea in law must perforce be rejected on the same grounds as those which led the Court to reject the first plea in law put forward by the Spanish Government, without there being any need to consider the applicability of the Agreement.

3i It follows from all the foregoing that the action must be dismissed.

hereby:

1. Dismisses the application;

2. Orders the Kingdom of Spain to pay the costs.

Rodriguez Iglesias Kapteyn Puissochet

Jann Gulmann

Murray Edward Ragnemalm