C-333/99
ECLI:EU:C:2000:488
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OPINION OF MR ALBER — CASE C-333/99
OPINION OF ADVOCATE GENERAL ALBER delivered on 21 September 2000 1
I — Introduction provisions, the detailed rules for the utili- sation of the quotas allocated to them.'
1. This action for failure to fulfil Treaty obligations concerns the conduct of the French authorities in connection with the management of fishing quotas for 1988 and 1990. The Commission complains that the French authorities did not promptly and effectively prohibit fishing as soon as 3. That obligation is more closely defined quotas were exhausted, with the result that in Article 1 of Council Regulation (EEC) during those years the fishing quotas were No 2241/87 of 23 July 1987 establishing exceeded. certain control measures for fishing activ- ities: 3
I I — Legal context
'1. In order to ensure compliance with all 2. Article 5(2) of Council Regulation the Regulations in force concerning con- (EEC) No 170/83 of 25 January 1983 servation and control measures, each Mem- establishing a Community system for the ber State shall, within its territory and conservation and management of fishery within maritime waters subject to its sover- resources 2states: eignty or jurisdiction, monitor fishing activ- ity and related activities. It shall inspect fishing vessels and all activities whose inspection would enable verification of the implementation of this Regulation, 'Member States shall determine, in accor- including the activities of landing, selling dance with the applicable Community and storing fish and recording landings and sales.
1 — Original language: German. 2 — OJ 1983 L 24, p. 1. 3 — OJ 1987 L 207, p. 1.
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2. If the competent authorities of a Mem- fishing for that stock or group of stocks by ber State observe, as a result of monitoring such vessels as well as the retention on or inspection carried out by them under board, the transhipment and the landing of paragraph 1, that the relevant rules con- fish taken after that date and shall decide cerning conservation and control measures on a date up to which transhipments and are not being complied with, they shall take landings or final notifications of catches are penal or administrative action against the permitted. The Commission shall forthwith master of such a vessel or any other person be notified of this measure and shall then responsible. inform the other Member States.
3. ...' 3. ...'
4. Article 11 of Regulation No 2241/87 deals with the management of fishing quotas by Member States: III — The facts, the procedure and the claims of the parties
'1. All catches of a stock or group of stocks subject to quota made by fishing vessels flying the flag of a Member State or registered in a Member State shall be A — The year 1988 charged against the quota applicable to that State for the stock or group of stocks in question, irrespective of the place of land- ing. 5. By letter of 1 August 1989 the Commis- sion requested the French Government to reply to various complaints concerning the management of fishing quotas in 1988. These concerned: 2. Each Member State shall determine the date from which the catches of a stock or group of stocks subject to quota made by the fishing vessels flying its flag or regis- tered in that Member State shall be deemed to have exhausted the quota applicable to it for that stock or group of stocks. As from — the exceeding of the quotas for 17 fish that date, it shall provisionally prohibit stocks,
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— failure to notify the monthly catch — failure to monitor fishing (Article 5(2) data, of Regulation No 170/83).
— failure to impose a temporary ban on 8. By letter of 27 November 1990 the fishing when quotas were deemed to French authorities admitted overfishing have been exhausted, and due to the belated prohibition of fishing and explained that this was the result of shortcomings in the statistical monitoring system. Since 1988, it had been doing everything it could to eradicate those short- comings. However, the French authorities denied that they had failed to exercise — failure to monitor fishing of these sufficient control over fishing activity. The stocks during the last months of the Commission had simply assumed that a year. belated halt to fishing meant insufficient control. Yet, according to the case-law,4 it could not base an action for failure to comply with Treaty obligations on a pre- sumption.
6. By letter of 23 October 1989 the French authorities drew attention to the difficulties with which they were faced, described the efforts they had made up to that point and announced other measures for the future. 9. On 29 September 1992, under Arti- cle 169 of the EC Treaty (now Article 226 EC), the Commission sent the French Government a reasoned opinion in which it reiterated its two complaints and gave the French Government two months to reply.
7. On 1 October 1990, by formal notice, the Commission initiated an infringement procedure against France for exceeding the fishing quotas for 14 fish stocks. It asserted: 10. In their reply of 3 December 1992 the French authorities pointed out that, at any
4 — In their reply to the reasoned opinion, the French authorities referred to the judgments in Cases 290/87 Commission v — failure to impose a temporary ban on Netherlands [1989] ECR 3083, paragraph 17, C-62/89 fishing when quotas were deemed to Commission v France [1990] ECR I-925, paragraph 37, and C-244/89 Commission v France [1991] ECR I-163, have been exhausted and point 35.
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rate in 1991 and ever since, their measures 12. On 22 January 1992 the French autho- had complied with the requirements of rities replied that the quotas had been Community law, as the Commission itself exceeded because of the shortcomings of had acknowledged. As far as the infringe- the statistical monitoring system. The ment of Article 5(2) of Regulation anchovy catches recorded up to the month No 170/83 was concerned, they considered of July had given no indication that the that the Commission had not established fishing quota would be exhausted by any breach of that rule and that, moreover, August. The French authorities had become according to case-law, in this respect Arti- aware of the exhaustion of the quota only cle 11 of Regulation No 2241/87 5was a on 5 November and had prohibited further lex specialis. anchovy fishing on 17 November. The same applied to whiting, mackerel and common sole. Since 1 April 1991, a new data-gathering system had been in place and would enable the requirements of the Community regulations to be met. With regard to catches made after the date on which further fishing was prohibited, they only amounted to ten tonnes or so.
B — The year 1990
11. By letter of 15 November 1991 the 13. On 25 January 1993 the Commission Commission noted that the French fishing initiated the infringement procedure by quotas for 1990 had been exceeded for sending the French authorities a formal some stocks because the French authorities notice in which it indicated that the expla- had failed to impose a temporary ban on nations provided by the French authorities fishing in good time. In the case of ancho- in the course of the abovementioned vies, the Commission requested the autho- exchange of letters were not such as to rities to provide the data on catches and justify the French authorities' behaviour, landings on which they had based their which was inconsistent with Community decision to halt fishing, including their law. estimates for imminent but not yet recorded and known landings and the probable future trend in catches, together with the date on which, in the estimation of the French authorities, the quota would be exhausted. The Commission also asked to be informed of all the measures that would be taken against those responsible in the 14. In their reply of 17 March 1993 the event of fishing quotas being exceeded. French authorities again pointed out that, after a few teething problems, the new statistical monitoring system was giving 5 — See point 4 above. satisfactory results, as the Commission had
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confirmed in its report of 6 March 1992 on for the 1988 and 1990 fishing the monitoring of implementation of the years, common fisheries policy (p. 62).
15. On 4 June 1997 the Commission issued a reasoned opinion reiterating the two — by failing to ensure compliance complaints and giving the French Govern- with the Community rules on the ment two months in which to reply. The conservation of species through French Government replied by letter of adequate monitoring of fishing 22 August 1997. It referred to an order of activities and through appropriate the competent minister of 24 August 1990 inspection of the fishing fleet, redistributing France's fishing quotas. actual landings and catch records for both the 1988 and 1990 fishing years,
C — Claims of the parties
— by not temporarily prohibiting, in 16. On 9 September 1999 the Commission both the 1988 and 1990 fishing brought the present action. years, fishing by vessels flying the French flag or registered in French territory at times when the catches made were deemed to have exhausted the corresponding quota, and by finally prohibiting 17. The Commission of the European fishing at a time when the quota Communities claims that the Court should: had been largely exceeded,
(1) declare that
— by failing, for the 1988 and 1990 fishing years, to take penal or administrative action against any — by failing to determine the appro- master or other person responsible priate detailed rules for the utilisa- for fishing after a prohibition had tion of the quotas allocated to it been imposed,
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the French Republic has failed to fulfil Article 5(2) of Regulation No 170/83 in its obligations under (i) Article 5(2) of conjunction with those of Article 1(1) of Regulation (EEC) No 170/83 of Regulation No 2241/87, 6inasmuch as the 25 January 1983 in conjunction with French authorities did not adequately con- Article 1(1) of Regulation (EEC) trol fishing. Those provisions presuppose No 2241/87 of 23 July 1987, (ii) Arti- control measures that are diversified cle 11(2) of Regulation (EEC) enough to take into account the specific No 2241/87 and (iii) Article 5(2) of characteristics of the various fisheries and Regulation (EEC) No 170/83 in con- effective enough to prevent quotas from junction with Article 1(2) of Regula- being exceeded. tion (EEC) No 2241/87;
20. During the years 1988 and 1990, the (2) order the French Republic to pay the French Republic failed to impose adequate costs. controls. If it had done so, quotas would have been respected and the French autho- rities would have prohibited in good time the fishing of species whose quotas were exceeded in those fishing years. The order 18. The French Republic requests the of 24 August 1990 could not be regarded Court to examine the subject-matter and as an adequate measure either. the merits of the case.
(2) Belated prohibition of fishing
IV — Legal analysis
21. The Commission also claims that the French Republic infringed Article 11(2) of Regulation No 2241/87. 7 By virtue of that A — Arguments of the Commission provision, every Member State must, on the basis of the information available as to catches taken, determine the expected date of exhaustion of the quota and adopt, in (1) Lack of control measures good time, the appropriate measures to enable fishing to be prohibited as from that date. However, during the 1988 fishing year, in every case fishing was prohibited
19. In the opinion of the Commission, the 6 — For the text or these provisions see points 2 and 3 above. French Republic infringed the provisions of 7 — See point 4 above.
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only after the quota had been exhausted. administrative penalties, it refers to the During the 1990 fishing year, in none of the measures adopted in 1997 which, it claims, six cases of overfishing established was any met the Commission's requirements. national measure taken to stop fishing.
(3) Lack of criminal or administrative 24. The French Government points out, penalties though only in its rejoinder, that even if the exceeding of quotas by France were assumed to have had an adverse effect on fishery resources, it could not have endan- gered them, given the French share of the overall Community catch and the natural 22. Finally, in the opinion of the Commis- evolution of stocks. Nor did the overfishing sion, the French Republic also infringed lead, through the application of Commu- Article 1(2) of Regulation No 2241/87. 8 nity law, to a reduction in the fishing According to the case-law of the Court, the quotas for the fleets of other Member penalties for infringement of the fishing States or to a change in the formula for quota system for which that article pro- the distribution of resources among Mem- vides are essential to the application of the ber States. Accordingly, it did not disturb common fisheries policy. 9 the balance between the various fleets.
B — Arguments of the French Republic
25. Finally, the French Republic asks why the Commission should have brought an action for failure to fulfil Treaty obligations based on facts now more than ten years 23. The French Republic does not deny old, when it acknowledges that France that it faced problems during the periods in improved its performance in subsequent question. With regard to criminal or fishing years. The French Government accordingly invites the Court to examine the cause, the reality and the extent of the 8 — See point 3 above. alleged infringements in the light of the 9 — Judgment in Case C-52/95 Commission v France [1995] ECR I-4443, paragraph 34 et seq. objectives of the common fisheries policy.
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C — Opinion 28. In certain special cases, having regard to the rights of the defence, an extremely protracted infringement procedure may preclude the bringing of the corresponding action. 10 However, the French Government has not adduced any circumstances that might justify such a conclusion. Moreover, it is for the Commission to judge, in (1) Interpretation of the claims of the pursuing an infringement procedure, pre- French Republic cisely when an action should be brought. 11 In this instance, it will be noted, in particular, that the dispute in question concerns parallel complaints relating to two different years and, moreover, that in the meantime the Commission has brought 26. As worded, the French Republic's another infringement action against the defence fails to meet the requirements of French Republic on similar grounds. 12 Article 40(1)(c) of the Rules of Procedure, Thus, since 1989, the Commission has inasmuch as it does not seek a sufficiently been constantly at odds with the French precise form of order. The outcome sought Republic over the French measures to by the French Republic is not apparent implement the common fisheries policy. from its request that the Court of Justice The action is therefore admissible. should examine the subject-matter and the merits of the case. Nevertheless, since the French Republic is defending itself at all, it must be concluded that its aim is to have the action dismissed.
(3) The merits of the case
(2) The admissibility of the action
29. Both parties are agreed that, as 27. The French Government's contentions, described by the Commission, the French considered together with its references to Republic failed to fulfil the requirements of the passage of time and the acknowledge- ment of improvements in the French mea- 10 — Judgment m Case C-96/89 Cumniissttm v Netherlands sures taken to control fishing activities, [19911 ECU 1-2461, paragraphs 15 and 16. imply that the French Government is ques- 11 — Sec mv Opinion delivered on 27 Januarv 2000 in Case C-.359/97 Cmmmssum v United Kingdom [2000] ECR tioning the Commission's legal interest in I-6355, paragraph 96, with additional references. bringing proceedings. 12 — Judgment m Case C-52/95 (cited in footnote 9 ahove).
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Community law in the context of the 31. Of course, the same applies to the years common fisheries policy and that therefore, 1988 and 1990. in the years 1988 and 1990, the French fishing fleet exceeded the fishing quotas allocated to it.
32. With regard to the French Govern- ment's observation that, in principle, the infringements have had no injurious effect, there is no need to consider its validity. First, under Article 42(2) of the Rules of Procedure, the argument is belated since it was advanced for the first time in the 30. The French Republic refers to the rejoinder. Second, the regulations which the shortcomings of its statistical monitoring French Republic has infringed create, for system during the years in question. In fact, Member States, an obligation to act whe- as regards the operation of this system as ther or not there may be any damage. Only long ago as 1991, in case C-52/95 Com- by applying them in this way is it possible mission v France, the Court of Justice found to prevent threats to the conservation of that: fish stocks.
V — Costs 'First, as regards the statistical system in operation in 1991, it has consistently been held [...] that a Member State cannot rely on practical difficulties in order to justify its failure to adopt appropriate control measures. On the contrary, it is for the Member States responsible for implement- 33. Under Article 69(2) of the Rules of ing Community regulations in the fishery Procedure, the unsuccessful party is products sector to overcome those difficul- required to pay the costs. The French ties by adopting appropriate measures.' 13 Republic having failed in its pleas and the Commission having applied for the costs to be paid by the French Republic, the latter 13 — Judgment cited in footnote 9 above, paragraph 28. should be ordered to pay the costs.
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VI — Conclusion
34. In the light of the above, I therefore propose that the Court should:
(1) declare that:
— by failing to determine the appropriate detailed rules for the utilisation of the quotas allocated to it for the 1988 and 1990 fishing years,
— by failing to ensure compliance with the Community rules on the conservation of species through adequate monitoring of fishing activities and through appropriate inspection of the fishing fleet, actual landings and catch records for both the 1988 and 1990 fishing years,
— by not temporarily prohibiting in both the 1988 and 1990 fishing years, fishing by vessels flying the French flag or registered in French territory at times when the catches made were deemed to have exhausted the corresponding quota, and by finally prohibiting fishing at a time when the quota had been largely exceeded by far,
— by failing, for the 1988 and 1990 fishing years, to take penal or administrative action against any master or other person responsible for fishing after a prohibition had been imposed, I - 1037
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the French Republic has failed to fulfil its obligations under (i) Article 5(2) of Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources in conjunction with Article 1(1) of Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities, (ii) Article 11(2) of Regulation (EEC) No 2241/87 and (iii) Article 5(2) of Regulation (EEC) No 170/83 in conjunction with Article 1(2) of Regulation (EEC) No 2241/87;
(2) order the French Republic to pay the costs.
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