T-311/97

PESCADOS CONGELADOS JOGAMAR V COMMISSION

ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber) 30 April 1999 *

In Case T-311/97,

Pescados Congelados Jogamar, SL, a company incorporated under Spanish law, established in Las Palmas, Spain, represented by Manuel de Cristóbal López, of the Madrid Bar, with an address for service in Luxembourg at the offices of Fiduciaire Beaumanoir, 48 Rue de Bragance,

applicant,

v

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh, Judges,

Registrar: H. Jung,

makes the following

Order

Legal framework

The Contracting Parties, desirous of ensuring the effectiveness of the measures for the development and conservation of fishery resources:

— shall develop administrative cooperation to ensure that their vessels respect the provisions of this Agreement and Morocco's regulations on sea fishing, each for its part,

— shall cooperate to prevent and combat illegal fishing, in particular through the exchange of information and close administrative cooperation. II - 1411

ORDER OF 30. 4. 1999 — CASE T-311/97

The practical arrangements for the implementation of administrative cooperation are set out at Annex II.

The application of the practical arrangements for administrative cooperation shall be examined by both Parties within the Joint Committee provided for in Article 10 of this Agreement.

PESCADOS CONGELADOS JOGAMAR V COMMISSION

— evaluate the results of the cooperation between the Contracting Parties with regard to supervision as set out in Annex II,

— examine the conduct of landings by Community vessels in Moroccan ports,

— examine the application of arrangements for cooperation to combat illegal fishing and for administrative cooperation to ensure respect for Moroccan regulations and the provisions of this Agreement.

The Committee shall meet once a year, alternately in Morocco and the Community, or in extraordinary session at the request of either of the Contracting Parties.

Article 11

1. Transmission of information

The [Moroccan] Ministry [of Maritime Fisheries and the Mercantile Marine] shall inform the Delegation [of the Commission of the European Communities to Morocco] within 48 hours of any boarding of a Community fishing vessel operating in Morocco's fishing zone and shall provide a brief report of the circumstances and reasons for this boarding.

The Delegation shall also be kept informed of the progress of the procedures and any penalties imposed.

2. Statement of boarding

After the Moroccan authority responsible for fishery protection duties has drawn up a statement, the master of the vessel shall sign it. II - 1414

PESCADOS CONGELADOS JOGAMAR V COMMISSION

(b) through legal proceedings:

if there is no administrative settlement and the matter is brought before a competent judicial body, a bank security shall be determined by the competent authorities as soon as possible in accordance with Article 110 of the Dahir (Decree) of 31 March 1919 and lodged by the shipowner with a bank designated by the Moroccan authorities. II - 1415

ORDER OF 30. 4. 1999 — CASE T-311/97

The bank security shall be irrevocable until the legal proceedings have been concluded.

It shall be released, less any trial costs, by the competent authority once the legal proceedings have concluded without the master in question being found guilty.

Similarly, if he is found guilty and the fine imposed is less than the security lodged, the balance, less any trial costs, shall be released after the judgment.

6 On 16 July 1997 the Albor Uno was intercepted by a Moroccan patrol boat, boarded and diverted to the port of El-Aaiun on the ground that on 15 July 1997 it had been fishing 4.5 nautical miles off the Moroccan coast, that is to say, inside the 12-mile limit.

7 The Moroccan authorities, acting in accordance with Chapter VIII (1) of Annex II to the Agreement, informed the Community authorities of this by letter of 17 July 1997.

8 On 18 July 1997 the Commission of the European Communities sent an expert, Mr Pagliarani, to El-Aaiun to examine the situation and draw up a report.

9 On the same day, Mr Pagliarani and Mrs Carratalá, together with Mr Fontán, Managing Director of the Asociación Nacional de Armadores de Cefalópodos (Anacef), Mr Miranda, Fisheries Adviser with the Spanish Embassy in Rabat, and Mr Fernández, Spanish Consul in Agadir, met with Mr Berrada Gouzi, a captain in the Moroccan Royal Navy, who informed them that the Albor Uno had been fined MAD 701 195.

10 On 21, 23 and 24 July 1997 respectively, the Commission delegation to Rabat (hereinafter 'the Delegation') sent a fax and two letters to the Moroccan Ministry of Maritime Fisheries and the Mercantile Marine (hereinafter 'the Moroccan Fisheries Ministry'), requesting all available information concerning the boarding of the Albor Uno and proposing that a tripartite committee be set up, composed of representatives of the Moroccan Fisheries Ministry, the Commission and the Moroccan Royal Navy, to examine the introduction of procedures designed to ensure greater transparency in the handling of cases involving the boarding of vessels. II - 1417

15 By fax of 14 August 1997 addressed to the Delegation, the applicant referred to the fact that it had waited for one month, and demanded the information requested in its fax of 11 August 1997, together with all other details concerning the Commission's negotiations with the Moroccan authorities, so that it could take action itself. II - 1418

PESCADOS CONGELADOS JOGAMAR V COMMISSION

16 By fax of 19 August 1997, the Commission forwarded Mr Pagliarani's report to the applicant. This stated that the 'Plotter' and 'GPS' navigation and fishing pathfinder systems with which the Albor Uno was equipped indicated that on 15 July 1997 the vessel had been fishing outside the 12-mile limit, and that there was no sign that the ship's log had been tampered with. Mr Pagliarani concluded that the positions adopted by the respective parties were wholly at odds and that the position could be clarified only if the Moroccan authorities provided further information concerning the radar detection of the Albor Uno and the related navigational data.

17 By fax of the same date, Mr Cavaco, Director-General of the Directorate-General for Fisheries (DG XIV) replied to the applicant's fax of 14 August 1997. He referred to the terms of the Agreement, under which it is for the ship-owner to choose the means by which a case of boarding is to be settled, that is to say, whether by administrative settlement or through legal proceedings. He also stated that the Commission had played no part in the negotiations with the Moroccan authorities.

18 The Albor Uno was released on 1 September 1997 by administrative settlement.

— declare that, contrary to the EC Treaty (Article 38 et seq.) and Regulation No 3954/92, the Commission failed to act by not intervening in connection with the boarding of the Albor Uno;

— declare that the Commission should not have delegated its powers in fishery matters to national authorities;

— order the Commission to pay the costs.

22 By its preliminary plea of inadmissibility, the Commission claims that the Court should:

— declare the application inadmissible;

— order the applicant to pay the costs. II - 1420

24 Under Article 114(3) of the Rules of Procedure, after a preliminary plea of inadmissibility has been raised, the remainder of the proceedings is oral unless the Court decides otherwise. In the present case, the Court (Fifth Chamber) takes the view that sufficient information is available in the case-file and that there is no need to open the oral procedure.

Arguments of the parties

25 The Commission contends that the application is manifestly inadmissible. II - 1421

ORDER OF 30. 4. 1999 — CASE T-311/97

26 First, the Commission maintains that, contrary to the requirements of the second paragraph of Article 175 of the Treaty, it was not first called upon to act. The applicant's fax of 11 August 1997 does not satisfy the essential conditions which the Court of First Instance requires if it is to infer that the institution concerned has thereby been called upon to act. The document in question does not refer to either Article 175 of the Treaty or to the fact that it, the fax, constitutes the administrative stage of the procedure for a declaration of failure to act; nor does it mention the measures which the applicant considers necessary to remedy the Commission's alleged inaction or failure to act.

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PESCADOS CONGELADOS JOGAMAR V COMMISSION

waters, as well as to the Spanish authorities. It cannot be sustained, therefore, that the Commission's non-intervention in these respects was of individual concern to the Albor Uno.

30 The applicant submits, first — as regards the Commission's contention that the applicant failed to satisfy an essential procedural requirement, namely, to call upon the Commission to act — that the principle of proportionality requires that Community measures placing a financial burden on the persons concerned must go no further than is strictly necessary for attaining the objective pursued and entail the minimum sacrifice possible on the part of the traders affected (Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237). Excessive procedural requirements which would make access to legal remedies more difficult or impossible would run counter to the right to effective judicial protection. The applicant submits that even if, in practice, the institution must be formally called upon to act, the wording of Article 175 of the Treaty does not require that the action to be taken be specified or that it be confined to what is expressly requested. The purpose of calling upon the institution to act is to start time running for the purposes of Article 175 and to determine in substance the action requested. Those requirements were satisfied by the fax of 11 August 1997. The date on which time started to run is the date on which the vessel was boarded and the action requested was action to secure the vessel's release.

Findings of the Court

34 It should be recalled that an action brought under Article 175 of the Treaty for failure to act is admissible only in so far as the applicant has duly followed the pre-litigation procedure, satisfying the essential procedural requirement of calling upon the institution concerned to act, within the meaning of the second paragraph of that provision (Case 17/57 Gezamenlijke Steenkolenmijnen in Limburg ν High Authority [1959] ECR 1, p. 8, and Case T-64/96 De Jorio ν Council [1997] ECR II-127, paragraph 39).

35 If such a request is to be capable of setting in motion the pre-litigation procedure for an action for failure to act, it must be expressed with sufficient clarity and precision for the institution to have a clear idea of the content of the decision sought and to realise that the purpose of the request is to compel the institution to state a position (Joined Cases 81/85 and 119/85 Usinor ν Commission [1986] ECR 1777, paragraph 15).

36 In the present case, in its fax of 11 August 1997, the applicant merely asked the Commission for the names, telephone and fax numbers of the officials and official bodies handling the matter — as well as a copy of the expert's report and the name and contact numbers of the official in whose keeping the report lay — so that it could contact them.

II - 1424

PESCADOS CONGELADOS JOGAMAR V COMMISSION

ORDER OF 30. 4. 1999 — CASE T-311/97

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby orders:

1. The application is dismissed as inadmissible.

2. The applicant shall bear the costs.