C-120/99

OPINION OF MR RUIZ-JARABO — CASE C-120/99

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 14 June 2001 1

I — Introduction I I— International protection of tuna

1. Under Article 173 of the EC Treaty 3. The International Convention for the (now, after amendment, Article 234 EC), Conservation of Atlantic Tunas (hereinafter the Italian Republic asks the Court of 'the Convention') was signed in Rio de Justice to annul Article 2 and the table Janeiro on 14 May 1966 and came into relating to bluefin tuna in Council Regula- force on 21 March 1969. 3Its objective is tion (EC) No 49/1999 of 18 December the conservation and management of 1998 fixing, for certain stocks of highly Atlantic tuna, 4through the cooperation migratory fish, the total allowable catches of the signatories in maintaining the popu- for 1999, their distribution in quotas to lations of those fish at levels which will Member States and certain conditions permit the maximum sustainable catch. 5 under which they may be fished 2(herein- after 'the Regulation' or 'Regulation No 49/1999').

4. In order to achieve the proposed objec- tives, the Convention established the Inter- national Commission for the Conservation 2. The Italian Republic takes the view, for of Atlantic Tunas (hereinafter 'ICCAT'), reasons which I shall set out in due course, which it authorised to make recommenda- that the percentages shown in Article 2(1) tions that become binding on the parties six and the quotas established in Article 2(2), months after the date of their notification in conjunction with the Annex, are unlaw- ful and cause it serious harm. 3 — The English version of the Convention is on the Internet, at http://www.iccat.es/. 4 — Article 1 defines its scope, which extends to the Atlantic 1 — Original language: Spanish. Ocean and the adjacent seas. 2 — OJ 1999 L 13, p. 54. 5 — See the preamble to the Convention.

unless an objection is presented within that a recommendation which, in the light of the period.6 The signatory States agreed to large French catches of bluefin tuna landed adopt all the measures necessary to ensure during 1994, imposed specific limits for implementation of the Convention. 7 France during the three-year period 1996 to 1998 in the Mediterranean Sea and the Eastern Atlantic Ocean. 10 That recommen- dation, which came into force on 22 June 1996, was repealed by Recommendation 98-5, adopted in Santiago de Compostela in November 1998. 11 5. At its ninth special meeting, which was held in Madrid during November and December 1994, ICCAT fixed, for the first time, owing to overfishing, a total allow- able catch of bluefin tuna for 1995, restricting it to the level of catch in 1993 or 1994, whichever was higher. Starting in 1996, measures had to be taken as neces- sary to reduce catches progressively to 75% of the 1995 quantities, such objective to be achieved before the end of 1998. The States which, like the Italian Republic, were not 7. At the 10th special meeting, held in San yet party to the Convention, and the Sebastián in November 1996, ICCAT General Fisheries Council for the Mediter- approved a new recommendation, which ranean, 8 were informed of the recommen- was officially notified on 3 February 1997 dation and requested to give their coopera- and entered into force on 4 August 1997, tion. It was provided that the recommen- under which the catch limit of any Con- dation would come into effect on 2 Octo- tracting Party which exceeded its quota ber 1995. 9 would, in the subsequent management period, be reduced by 100% of the amount in excess; that figure could be as high as 125% 12 if the catch limit was exceeded in two consecutive management periods. 13 Application of the reduction would be deferred to a management period after the one immediately following the period in 6. At its 14th regular meeting, held in which the limit had been exceeded if, at the Madrid in November 1995, ICCAT made time the limits were fixed, not all the data relating to the catches for that period were 6 — See Articles IV and VIII. 7 — See Article IX(1). 10 — Recommendation for supplementary measures in the 8 — The Fisheries Council adopted ICCAT's recommendation in Eastern Atlantic Ocean and Mediterranean Sea (sec its Resolution 95/1 (see the document submitted by the Annex II submitted by the Council with the defence). Council as Annex III to its defence). 11 — The repeal is contained in Point 5 of the recommendation. 9 — ICCAT Recommendation 94-11 tor the Management of See point 11 of this Opinion. Bluefin Tuna Fishing in the Eastern Atlantic Ocean and Mediterranean Sea ('Compendium of the Management 12 — Other appropriate action could also be taken, such as trade Recommendations and Resolutions adopted by ICCAT for restrictive measures. the Conservation of Atlantic Tunas and Tuna-like Spe- 13 — Recommendation 96-14 regarding compliance i n the cies' — http://www..iccat.es/ — (hereinafter the 'Compen- Bluefin Tuna and North Atlantic Swordfish Fisheries (see dium'), p. 49). Annex V to the defence and the Compendium, p. 88).

8. By Decision of 9 June 1986, 15 the Council approved the accession of the Community to ICCAT, which took place 11. In fulfilment of the abovementioned on 14 November 1997. 16 mandate, negotiations were opened with ICCAT. The result was the recommenda- 14 — This is Recommendation 98-13. See Annex VI to the defence, page 97 of the Compendium, and the Council's answer to the second of the questions put to it by the 17 — The Regulation fixing, for certain stocks of highly Court. migratory fish, the total allowable catches for 1998, their 15 — Council Decision 86/238/EEC on the accession of the distribution in quotas to Member States and certain Community to the International Convention for the conditions under which they may be fished (OJ 1998 Conservation of Atlantic Tunas, as amended by the L 12, p. 145). Protocol annexed to the Final Act of the Conference of 18 — See its third recital. Plenipotentiaries of the States Parties to the Convention 19 — Of the 4 452 tonnes allocated in the Atlantic Ocean, 3 signed in Paris on 10 July 1984 (OJ 1986 L 162, p. 33). went to Greece, 3 809 to Spain, 400 to France, 180 to 16 — Some Member States were party to the Convention before Portugal and 60 to the rest of the Member States. In the that date: Spain and France, since 21 March 1969; Mediterranean Sea, the Community had 11 621 tonnes: Portugal, since 3 September 1969; the United Kingdom 272 for Greece, 2 033 for Spain, 4 850 for France, 4 145 (for Bermuda), since 10 November 1995; and Italy, since for Italy and 321 for Portugal. In both sectors France was 6 August 1997 (see footnote 4 of the defence and the allocated the maximum envisaged in the recommendation document which, as Annex I, the Republic of Italy adopted by ICCAT at its 14th regular meeting (see point 6 enclosed with its application). of this Opinion).

20 — Recommendation 98-5 on the Limitation of Catches of — Spain: 34.35%.' Bluefin tuna in the Eastern Atlantic and Mediterranean (Compendium, p. 58). 2 1 — E x c e p t for Morocco and Lihya. En its answer to the questions put to it by the Court of Justice, the Council states that the recommendation entered into force on 21 June 1999, but this statement contradicts the date which appears on Page 58 of the Compendium, which is 20 August of that year. In my view, the Council has made a mistake and indicated as the date of entry into force of this 13. However, ad hoc parameters were set recommendation the date of entry into force of the supplementary recommendation mentioned in point 7 of for 1999, in view of the special circum- this Opinion, which was adopted at the same special stances due to the Community's accession meeting. 22 — This allocation was calculated by adding the relative shares of each Memher State (footnote ** to Recommendation 98-5). 24 — See the second, third and fourth recitals and Article I of 23 — See paragraphs 2 and 4 of Recommendation 98-5. the Regulation.

I - 8005

OPINION OF MR RUIZ-JARABO — CASE C-120/99

15. The powers exercised by the Council in — Spain: 5 555 Regulations Nos 49/1999 and 65/98 have as their basis Council Regulation (EEC) No 3760/92 of 20 December 1992 estab- lishing a Community system for fisheries — Others (by-catch): 60. 27 — See the report of the Committee of Permanent Represen- tatives, which the applicant enclosed with its application as Annex 4, and Paragraph 12 of the defence. 25 — See the fifth recital in the preamble to the Regulation. 28 — France: 6 813 tonnes; Greece: 357 tonnes; Italy: 5 379 26 — This figure is the result of subtracting from the 20 165 tonnes; Portugal: 650 tonnes; and Spain: 6 906 tonnes. tonnes allocated to the Community in Recommendation 98-5 the 4 029 tonnes by which the Member States 29 — 6 tonnes and 2 713 tonnes respectively. exceeded their quota during 1997 (France: 0 tonnes; 30 — 400 tonnes from Spain and France, and 50 tonnes from Greece: 331 tonnes; Italy: 2 666 tonnes; Portugal: 81 Portugal. tonnes and Spain: 951 tonnes). 31 — 750 tonnes for Italy and 100 tonnes for Greece.

I - 8006

ITALY v COUNCIL

and aquaculture, 32 Article 8(4) of which At the hearing on 10 May 2001, oral provides: argument was presented by the representa- tives of the applicant and the defendant and the Agents of the Commission and the Kingdom of Spain.

'The Council, acting by qualified majority on a proposal from the Commission:

V — Analysis of the pleas supporting the claim for annulment

reasons on which Article 2(1) is based is ments laid down by Article 190 of the found in the fourth recital in the preamble Treaty for statements of reasons have been to the Regulation, according to which 'the satisfied. In order to account for the percentage shares of the Member States in introduction of the provision and, there- catches from the Eastern Atlantic and fore, of the percentages it allocates to the Mediterranean stocks for bluefin tuna Member States listed in it, the Regulation should be set.' The applicant considers that refers to: this is merely ostensible reasoning which does not fulfil the requirements laid down in the case-law of the Court of Justice, since it does not explain the allocation of quotas made in the contested provision.

I - 8008

ITALY v COUNCIL

21. In my view, that statement of reasons is institution is reasoned, it is also necessary adequate in the light of the nature of the to take into account its context, particu- measure concerned. 37 In the case of legis- larly the legislative context, and the proce- lative measures intended to be of general dure followed for its adoption, with which and temporarily unspecified application, 38 the Member States may be closely con- it is enough if the statement of reasons nected. 41 indicates the general situation which led to their adoption and the general objectives which it is intended to achieve, 39 and if the measures refer to the legal rule which forms the basis of the power exercised. 40

I - 8009

OPINION OF MR RUIZ-JARABO — CASE C-120/99

24. It is clear that the Italian Republic, like archy of norms and of Article 8(4)(ii) of the Court of Justice, is fully aware of the Regulation No 3670/92. reasons why the Council adopted Arti- cle 2(1) of the Regulation. It knows the background and objectives of the provision and also knew — before it was approved — the criteria followed for establishing the quota shares set out in it. 47 It cannot therefore complain that the 26. In the applicant's view, this triple provision lacks a statement of reasons. infringement stems from the failure to take account of the principle of relative stability of the fishing activities of the various Member States. Unlike Regulation No 65/98, the preamble to the contested Regulation contains no express reference to Article 8(4)(ii) of Regulation No 3760/92. That omission constitutes an even more B — Subsidiary pleas in law serious inadequacy than the one indicated above, since no reasons are given for that departure from the norm.

the contested Regulation does not refer to only a reference in the contested Regulation Article 8(4)(ii) of Regulation No 3760/92. to the provision which requires the princi- We need only read the references and the ple of relative stability to be taken into third recital in the preamble to see that account but in addition that principle was Article 8(4) of the 1992 Regulation is actually applied in apportioning the quota expressly mentioned twice. In that recital of bluefin tuna available to the Community. it is stated that, under the aforementioned provision, it is the task of the Council to divide up the share available to the Com- munity among the Member States and it thus seems clear that it will do so in accordance with the requirements it imposes and taking into account the provi- sions of subparagraph (ii), that is, assuring each Member State relative stability of its 31. That is the background to the second fishing activities. argument put forward by the Italian Republic in the alternative to obtain the annulment of Article 2(1) of the Regula- tion, an argument relating to the actual basis of apportionment.

29. There is, therefore, neither tacit dero- gation from the principle of relative stabi- lity nor infringement of the 1992 Regula- tion, of the principle of the hierarchy of norms or of Article 43 of the Treaty. 32. The applicant complains that the Council set the percentage shares in the Community quota of bluefin tuna taking account of the catch figures of a single year, not several years. The percentage allocated to Italy would have been significantly (b) The manifestly inappropriate nature of higher if the Council had based its decision the criteria adopted for application of the on a series of catches stretching back over principle of relative stability three, five or eight years, not just those of 1993 or 1994.

That criterion for distribution, already used in Regulation No 65/98, 52 applies the same parameters as those taken into con- 35. Bearing in mind that concept of relative stability, the Court of Justice has pointed 50 — See the judgment in Case C-4/96 NIFPO and Northern out that the aim of the quotas is to ensure Ireland Fishermen's Federation [1998] ECR I-681, para- for each Member State a share of the total graphs 47 and 48 (hereinafter 'the NIFPO judgment'). The Court of Justice expressed itself in the same terms in its judgments in Case C-3/87 Agegate [1989] ECR 4459, paragraph 24, and Case C-216/87 jaderow [1989 ECR 4509, paragraph 238, with reference to Council Regulation (EEC) No 170/83 of 25 January 1983 estab- 48 — See the 12th, 13th and 14th recitals. lishing a Community system for the conservation and 49 — Tuna-fishing and the hardships suffered by fishermen's management of fishery resources (OJ 1983 L 24, p. 1). families in Sicily are wonderfully portrayed by Giovanni Verga in his novel J Malavoglia, which inspired the film La 51 — See, amongst others, Case 46/86 Romkes [1987] Terra Trema, a masterpiece made in 1948 by Luchino ECR 2671, paragraph 17, and Case C-71/90 Spain v Visconti with the help of Franco Zeffirelli and Francesco Council [1992] ECR I-5175, paragraph 15. Rosi. 52 — Which, incidentally, the applicant did not contest.

I - 8012

ITALY v COUNCIL

37. We may argue as much as we like about the criterion chosen for allocating quotas, but it falls within the discretion enjoyed by the Council for implementation of the 39. Furthermore, as the Commission cor- Community's agricultural policy. As a dis- rectly points out in its observations, we cretionary power, it is subject to judicial review only if there has been a manifest error or misuse of power or if the bounds of 55 — Sec paragraph 42 of NIFPO, cited in footnote 50, and the judgment mentioned i n it. It should be remembered that its discretion in those circumstances is not limited solely to the nature and scope of the measures to be taken but also, to some extent, to the finding of basic facts (see Case 5.3 — See point 11 above. It is not true, as stated in the C-179/95 Spain v Council [1999] LCR I-6475, para- applicant's reply, that the Council considers the data for graph 29). 1993 and 1994 inadequate in the cases of Greece and Italy. 56 — It should be remembered that the prohibition of discrimi- The Council itself merely stated in its defence (Para- graphs 6 and 7) that those two States requested a revision nation requires that comparable situations should not be of the catch figures for those years and that the Commis- treated in a different maimer unless the difference in sion negotiated the revision within ICCAT. treatment is objectively justified (see, for example, NIFPO, cued above, paragraph 58) and, accordingly, that people in 54 — This is stated in the preamble to Recommendation 98-5 different situations should not be treated i n the same (see the Compendium, p. 58). manner.

40. In order to seek the annulment of this provision, the Italian Republic alleges, here too, that there is a failure to state the reasons. The only explanation on this matter contained in the Regulation must be sought in its fifth recital. 59 In the 42. There is proper reasoning, not only applicant's view, this reasoning is merely because of the fifth recital in the preamble ostensible and conceals the true reason for to the Regulation but also because in other parts of the preamble explanations are given for the contested provision. In the 57 — As was Regulation No 65/98. second and eighth recitals reference is made 58 — This represents the sum of the former national quotas to the obligations assumed by the Commu- which have to be distributed. 59 — 'Whereas for 1999 an ad hoc distribution among the nity as a contracting party to the Conven- Member States should be made in view of the special tion and to the establishment by ICCAT of circumstances due to the Community's accession to ICCAT.' a system of deductions for quantities overf-

I - 8014

ITALY v COUNCIL

ished which differs from the system laid the procedure followed for setting the down in the Community legislation. 60 specific limits stated in the provision it is contesting. 62

43. In any case, the applicant ultimately learned the reasons for the provision at issue and also the procedure followed for arriving at the specific figures contained in 46. Whether or not the reasons put for- the Annex relating to bluefin tuna; there- ward by the Council to justify the rule fore, the objective pursued by the require- which is now being challenged are correct ment that there should be a statement of is a different issue, unconnected to whether reasons was achieved. or not a statement of reasons exists.

I-8015

OPINION OF MR RUIZ-JARABO — CASE C-120/99

B — The subsidiary pleas in law fulfilment of valid obligations, the Com- munity had its fishing quota reduced for 1999 owing to the fact that several of the Member States had exceeded their catch limits during 1997. Failure to take account, when distributing that quota within the Community, of the excess catches and to (a) Discrimination between Member States deduct them from the Member States responsible would amount not only to discrimination against the Member States which had remained within the set limits but also to infringement of the principle of relative stability, which, as I have already 47. The Italian Republic maintains in its pointed out, requires that regions whose application that the sole aim of the excep- populations depend on fishing may con- tional distribution made for 1999 was to tinue to exercise that economic activity in treat the Member States differently, with- accordance with existing resources. 64 out taking into account the principles and rules of Community law and, in particular, Article 8(4) of Regulation No 3760/92.

I - 8016

ITALY v COUNCIL

to the excess catches landed during 1997 is which the limit had been exceeded if, at the lawful, and does so on the basis of four time the limits are fixed, complete data arguments: (a) sanctions for exceeding relating to the catches for that period are catch limits imply that the offending Mem- not available. 65 ber State bears individual responsibility, and they could not therefore be the subject of the negotiations provided for in Regula- tion No 65/98, which refers to the actual quotas allocated on a consistent basis to the Member States; (b) in any event, negotia- 51. The reply to the first two arguments tions relating to the reduction of quotas must not overlook the fact that when the cannot be conducted without the State Community became a party to the Con- concerned having the opportunity to vention for the Conservation of Atlantic defend itself; (c) ICCAT Recommendation tunas, it was subrogated to the position of No 96-14 regarding over-exploitation dur- those of its Member States that already ing 1997 provides that the amount of the belonged to that international organisation excess is to be deducted in the following and which, at the same time, transferred to season (1998), so it is incorrect to do so for it the responsibility for acting for them the 1999 season; and (d) the Italian Repub- within ICCAT. This finding is an unavoid- lic joined ICCAT only a few days after the able consequence of the provisions of the abovementioned recommendation came second indent of Article 2, Article 3(2), and into force, which means that it cannot be Article 11 et seq. of the Treaty on Eur- penalised for exceeding the catch limits opean Union, which impose the require- during 1997. ment of a common foreign policy and, more particularly, of the provisions of Article 3 EC (Article 3 of the EC Treaty before amendment) which, in paragra- ph (e), requires the adoption of a common policy in the spheres of agriculture and fisheries.

53. Regulation No 65/98 authorised the a false premiss in so far as it treats the European Commission to negotiate within reduction in fishing quotas provided for in ICCAT the revision of catch figures for Recommendation 96-14 as a sanction. Member States without any limitation and, if necessary, to make a later adjustment to the intra-Community distribution. 67 I have no doubt that, for that purpose, it was essential to weigh up all the relevant information and circumstances, amongst them those relating to over-exploitation 56. A sanction, whether penal or adminis- and the corresponding deductions made in trative, is a legal device whose fundamental application of recommendations to which objective is to punish — and generally and no Member State of the Community — specifically to discourage — conduct char- nor Italy, when it joined ICCAT — made acterised as reprehensible in the relevant any objection at the time. legal instrument. 68

Since the reprehensible conduct is likely to alter the situation, the sanction in the strict sense may be accompanied by additional measures — to make amends and restitu- 54. In such a situation there is no chance at tion — aimed at restoring the situation all that any Member State will be left which prevailed before the transgression defenceless, because, in the negotiations, was committed; but such measures are not the Community defends the Community in the nature of a sanction. interests which, as far as the common agricultural policy is concerned, are also those of each of its members.

ICCAT's objective is the conservation and 59. Even if the applicant's argument were management of Atlantic tuna, through the accepted and the measure in question were cooperation of the parties in maintaining acknowledged to be a sanction, it could not tuna stocks at levels which allow sustained be inferred that a deduction from the maximum catches. In pursuit of that objec- Italian Republic's quota for 1999 of the tive, where there is 'over-exploitation' it quantities by which it had exceeded its has the power to adopt binding recommen- quota during 1997 constituted an infringe- dations to limit catches and distribute them ment of the principle which prohibits the between the States which have tuna-fishing retroactive application of sanctions. fleets. If one of them exceeds the limit, it upsets the balance to the detriment of the others and it therefore becomes necessary, in order to achieve the proposed aims, to restore that balance. Stability is restored by deducting from the quota of the offending State the amount by which it has exceeded the limit. That is the meaning and scope 60. It should be pointed out that Recom- which should be attributed to the measure mendation 96-14 entered into force two adopted in Point 2 of ICCAT Recommen- days before Italy joined ICCAT, 72 so it is dation 96-14. not possible to speak of retroactive appli- cation on a legislative level. When Italy joined the organisation, the recommenda- tion was already a legal reality 73 and, more significantly, although Italy knew of its existence, it did not raise any objections to it during the accession procedure.

I-8019

OPINION OF MR RUIZ-JARABO — CASE C-120/99

Italy became a member of ICCAT. That sion — did not exceed the threshold indi- view disregards the substance of the trans- cated, 75 in the knowledge that, if it did not gression with which it is charged. It is, by comply, the amount of the excess could be its very nature, an infringement which is deducted from its quota for the following committed only when the fishing limits year. 76 allocated have been exceeded and which, from that moment, becomes 'persistent' if the catches continue.

62. The Italian Republic, even before it became a member of ICCAT, had under- Therefore, it is not possible to allege, on the taken not to exceed the bluefin fishing basis of that argument, infringement of the levels indicated in Recommendation 94-11, principle that sanctions must not have since that provision was adopted by the retroactive effect, which, in accordance General Fisheries Council for the Mediter- with the principle of legal certainty, ranean, to which it belonged, in its Resolu- requires that nobody should be subjected, tion 95/1. 74 after the event, to an unexpected classifica- tion of action which, at the time it was taken, was not described as sanctionable. Italy knew, when it acceded to the Interna- tional Convention for the Conservation of Atlantic Tunas, that it ought not to exceed a specific threshold and that, if it did so, Recommendation 96-14 could be applied to it. 77

I - 8020

ITALY v COUNCIL

63. In view of the foregoing, none of the VI — Costs infringements which the Italian Republic attributes to Article 2 of the Regulation and the table in its Annex relating to bluefin tuna has taken place and this action 64. The dismissal of the action brought by the Italian Republic means that, under the for annulment should therefore be dis- first paragraph of Article 69(2) of the Rules missed. of Procedure, that State should be ordered to pay the costs.

V I I— Conclusion

65. In the light of the foregoing considerations, I suggest that the Court of Justice dismiss the action for annulment brought by the Italian Republic against Article 2, and the table in the Annex relating to bluefin tuna, of Council Regulation (EC) No 49/1999 of 18 December 1998 fixing, for certain stocks of highly migratory fish, the total allowable catches for 1999, their distribution in quotas to Member States and certain conditions under which they may be fished, and order the applicant to pay the costs.

I - 8021