C-454/99

OPINION OF MRS STIX-HACKL — CASE C-454/99

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 5 March 2002 1

I — Introduction examined therefore whether fresh consider- ations arising in particular from the argu- ments of the United Kingdom Government militate against application here of the considerations underlying the judgment in 1. This action for failure to fulfil Treaty that case. Should that prove not to be the obligations concerns the conduct of the case it will be a matter of determining United Kingdom authorities in connection whether the Commission's submissions with the management of fishing quotas for warrant the declarations sought by it or 1985 to 1988 and 1990. In parallel pro- not. ceedings in Case C-140/00 the Commission is raising analogous complaints in regard to 1991 to 1996.

8. As regards the management of quotas, Article 5(2) of Regulation No 170/83 pro-

That regulation was amended by Council Regulation (EEC) total allowable catch for each stock or No 3777/85 of 31 December 1985 amending Regulation group of stocks, the shares available to the (EEC) No 3721/85 (OJ 1985 L 363, p. 1), Council Regu- lation (EEC) No 114/86 of 20 January 1986 extending until Community and, where applicable, the 31 December 1986 the validity of Regulations (EEC) No 3721/85. No 3730/85, No 3734/85 and No 3777/85

No 1365/87 of 18 May 1987 amending Regulation (EEC) No 4034/86 (OJ 1987 L 129, p. 15), Council Regulation (EEC) No 1880/87 of 30 June 1987 amending Regulation (EEC) No 4034/86 (OJ 1987 L 179, p. 4), Council Regu- lation (EEC) No 2999/87 of 5 October 1987 amending Regulation (EEC) No 4034/86 (OJ 1987 L 285, p. 2) and Council Regulation (EEC) No 3545/87 of 23 November 1987 amending for the fourth time Regulation (EEC) No 4034/86 (OJ 1987 L 337, p. 7). 7 —Council Regulation (EEC) No 3977/87 of 21 December

p. 1). That regulation was amended by Council Regulation under which they may be fished (OJ 1989 L 389, p. 1). That (EEC) No 800/85 of 26 March 1985 amending for the regulation was amended by Council Regulation (EEC) second time Regulation (EEC) No 1/85 (OJ 1985 L 89, No 738/90 of 22 March 1990 amending Regulation EEC) p. 4), Council Regulation (EEC) No 2756/85 of 27 Sep- No 4047/89 (OJ 1990 L 82, p. 7), Council Regulation tember 1985 amending for tne third time Regulation (EEC) (EEC) No 1874/90 of 27 June 1990 amending for the No 1/85 (OJ 1985 L 259, p. 68) and Council Regulation second time Regulation (EEC) No 4047/89 (OJ 1990 (EEC) No 3720/85 of 20 December 1985 amending for the L 171, p. 1) and by Council Regulation (EEC) No 1887/90 fourth time Regulation (EEC) No 1/85 (OJ 1985 L 361, of 29 June 1990 amending for the third time Regulation

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vides that the 'Member States shall deter- waters subject to its sovereignty or juris- mine, in accordance with the applicable diction, inspect fishing vessels flying the Community provisions, the detailed rules flag of, or registered in, a Member State in for the utilisation of the quotas allocated to order to ensure compliance with all the them.' regulations in force concerning conser- vation and control measures.

12. With effect from 1 January 1987 '1. Each Member State shall, within ports Article 1 of Regulation No 2057/82 was situated in its territory and within maritime

10 — Council Regulation (EEC) No 3723/85 of 20 December 9 — Council Regulation (EEC) No 2057/82 of 29 June 1982 1985 amending Regulation (EEC) No 2057/82 establish- establishing certain control measures for fishing activities by ing certain control measures for fishing activities by vessels vessels of the Member States (OJ 1982 L 220, p. 1). of the Member States (OJ 1985 L 361, p. 42).

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again amended, 11 this time to read inter or his agent must submit to the authorities alia as follows: of the Member State whose landing places he uses a declaration concerning the quan- tities landed and the location of catches. Under Article 6(2) Member States have the task of verifying the accuracy of those declarations.

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2. Each Member State shall determine the of fishing being halted as a result of a date from which the catches of a stock or TAC's being exhausted. 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 that date, it shall provisionally prohibit fishing for that stock or group of stocks by such vessels as well as the retention on board, the transhipment and the landing of fish taken after that date and shall decide on a date up to which transhipments and 16. Regulation No 2057/82 was replaced landings or final notifications of catches are by C o u n c i l R e g u l a t i o n (EEC) permitted. The Commission shall forthwith No 2241/87 12 with effect from 1 August be notified of this measure and shall then 1987. That regulation, which in its turn inform the other Member States. was repealed with effect from 1 January 1994, consolidated the amended versions of Regulation No 2057/82. Articles 1 and 11 of Regulation No 2241/87 thus cor- responded to Articles 1 and 10 of Regu- lation No 2057/82, as amended by Regu- lation No 4027/86.

3. Following notification under paragraph 2 or on its own initiative, the Commission shall fix, on the basis of the information 17. Article 9 of Regulation No 2241/87 available, the date on which, for a stock or provided, inter alia, as follows: group of stocks, the catches subject to TAC, quota or other quantitative limitation made by fishing vessels flying the flag of, or registered in, any Member State are deemed to have exhausted the quota, allocation or '1. Member States shall ensure that all share available to that Member State or, as landings by fishing vessels flying the flag of, the case may be, to the Community. or registered in, a Member State of stocks or groups of stocks subject to TACs or quotas are recorded....

3. The Commission shall inform Member States of the notifications received pursuant 19. By letters dated 2 October 1986, to this article within 10 days of the date on 13 May 1987 and 26 March 1991 the which it received them. Commission drew the United Kingdom Government's attention to the fact that in the case of various fish stocks catch quotas had been exceeded in 1985.

4. Each Member State shall keep, or cause to be kept, records submitted to its com- petent authorities in accordance with 20. In those letters it specifically alleged Articles 5 and 6 and the particular detailed that the United Kingdom authorities had,

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contrary to the relevant provisions of 9 February 1989. The reasoned opinion of Community law, taken no steps to prevent 1 October 1992 concerns 1985, 1986 and quotas from being exceeded. 1987. Finally, the reasoned opinion of 17 April 1996 concerns 1988 and 1990.

21. The United Kingdom replied on 9 De- cember 1986, 11 June 1987 and 16 May 1991 to the relevant letters of formal notice 24. The United Kingdom replied to the concerning overfishing in 1985, on 10 No- reasoned opinions in respect of the years vember 1987 and 16 May 1991 concerning 1985 to 1987 in letters dated 8 February overfishing in 1986, on 28 June 1989 and 1989, 17 April 1989 and 5 February 1993 16 May 1991 concerning overfishing in and, in respect of the years 1988 and 1990, in a letter dated 13 July 1996. The United 1987, on 22 July 1991 concerning over- Kingdom Government drew particular fishing in 1988 and on 19 April 1993 attention therein to measures for improved concerning overfishing in 1990. monitoring of anglo-Spanish vessels which in its view had prevented subsequent over- fishing.

26. In respect of 1986 the Commission founds its action on four cases of over- fishing and one case of fishing in unauth- orised zones. 29. As regards overfishing of hake and cod, according to the Commission, the United Kingdom authorities explained that once more overfishing was partly attributable to anglo-Spanish vessels. For cod they also 27. With respect to sole fishing in zones V referred to difficulties caused by the large b (EC zone), VI, XII and XIV, according to number of landings by small vessels which the Commission, the United Kingdom auth- do not have to comply with the log-book orities stated that by mid-November the rules. level of catches had already reached 14 tonnes — out of the permitted quantity of 15 — so they decided to prohibit further fishing on 29 November 1986. However, according to the Commission's figures the quota of 15 tonnes had been reached in October, with the result that the fishery 30. In addition, the Commission states that should already have been closed at that the United Kingdom authorities conceded time. Moreover, three more tonnes were in their letter of 17 April 1989 that, with landed between the ban being imposed and respect to blue ling and ling, catches had the end of the year. continued after the Commission ordered closure of the fishery on 15 October.

28. With respect to sole fishing in zone VII a, according to the Commission, the United Fishing management year 1987 Kingdom authorities explained that part of the overfishing was attributable to anglo- Spanish vessels. They also explained that on 13 October they imposed a 10% catch restriction, but after an unexpected increase in catches that restriction proved to be inadequate, so that fishing was prohibited 31. In respect of 1987 the Commission with effect from 15 November. The Com- founds its action on two cases of over- mission counters that explanation by stat- fishing and six cases of fishing in unauth- ing that the restriction was applied only at orised zones.

36. In respect of 1990 the Commission 34. On the basis of the results of that founds its action on four cases of over- investigation, the Commission estimated fishing. that 50 245.9 tonnes of the quantities stated in the log-books as having been made in zone VI had actually been caught in zone IV. The Commission therefore decided, on the basis of a cautious estimate, to re-attribute 25 000 tonnes to that zone. At the same time it expressly stated that it 37. In respect of plaice and sole the Com- was proceeding on the assumption that, if a mission claims that, in the absence of large number of landing declarations con- prompt control measures, it was fore- cerning a total of 32 000 tonnes had not seeable that the annual catch would exceed been lost, it might have become clear that the quota by late October. However, no some of that amount had come from other measures to prevent that outcome were zones. adopted. According to the United Kingdom authorities, the overfishing in question was due to computer problems and to a sub- 14 — Commission Regulation (EEC) No 3165/88 concerning stantial and unpredictable increase of land- the stopping of fishing for mackerel by vessels flying the flag of the United Kingdom (OJ 1988 L 282, p. 18). ings in the Netherlands.

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38. As regards cod catches in north Nor- (ii) to close provisionally the fisheries way waters, the Commission maintains for certain stocks when the rel- that the United Kingdom's cumulative evant quota was exhausted, catch reached 2 571 tonnes by the end of May and by December had increased by a further 2 tonnes, although the United Kingdom authorities had banned fishing on 27 April.

lation (EEC) No 2057/82 and A — General: allocation of burden of Article 11(2) of Regulation (EEC) proof No 2241/87; (c) Article 9 of Regu- lation (EEC) No 2241/87; and (d) Article 1(2) of Regulation (EEC) No 2057/82 or Article 1(2) of Regu- lation (EEC) No 2241/87 in conjunc- tion with Article 5(2) of Regulation 42. The United Kingdom Government does (EEC) No 170/83; not deny that considerable overfishing took place in the years 1985 to 1988 and 1990 (hereinafter 'the relevant period'). Nor — with two exceptions — are the figures on which the Commission's action is based contested. Conversely, the United Kingdom 2. order the United Kingdom to pay the Government challenges the Commission's costs. submissions to the effect that the competent national authorities had not ensured com- pliance with the relevant provisions and the non-observance of the fishing quotas at issue was attributable thereto.

40. The United Kingdom contends that the Court should dismiss the application as unfounded and order the Commission to pay the costs.

cannot rely on a mere presumption but conservation and management of fishery must adduce precise and specific facts. 18 resources cannot be dismissed as unfounded simply because it is merely based on specific cases of overfishing. Even a few cases of overfishing in the individual Member States may, owing to their poss- ible cumulative effect, seriously jeopardise attainment of the objectives of the Com- munity rules. It is therefore only logical that, in accordance with the judgment in Case C-333/99, whether there is held to be 45. However, in the application of that an infringement of the obligations provided principle to proceedings concerning com- for in the relevant regulations is determined pliance with Community rules on the con- not by the number of stocks affected by servation and management of fishery overfishing but by the relative scale and resources reference must be also made to repetition of overfishing. the judgment of 1 February 2001 in Case C-333/99. 19 There the Court found that 'the scale of those figures and the repetition of the situation which they describe' showed 'that the instances of overfishing could not but have been the consequence of a failure by the French authorities to comply with their monitoring obligations. The French Government's argument that the Commission is basing itself on no more 47. The Commission is also right to point than a presumption is for that reason out that the Community rules do not unjustified.'20 prescribe the measures necessary in order to ensure compliance with the quotas. Rather it is a matter for the Member State to select the measures which will be most effective under local conditions. Accord- ingly, the Commission cannot be required to prove which measure(s) ought to have been taken in order to prevent overfishing.

51. In the Commission's view, it flows from the Member States' obligation under Article 5(2) of Regulation No 170/83 to determine, in accordance with the appli- cable provisions of Community law, detailed rules for utilisation of quotas allocated to them, that they have also to ensure compliance with the measures adopted, which in its turn requires appro- priate penalties to be laid down. Although the problem of the landing of fish outside 50. Thus, in regard to Community policy the United Kingdom was known for a long on fisheries, account is taken of its objec- time, cases of overfishing continued tives by virtue of the obligation on the throughout the whole of the relevant Member States as a matter of principle to period; that permits the inference that the achieve a result, that is to say to observe the United Kingdom did not put in place fishing quotas allocated to them, which in appropriate detailed rules for utilisation of its turn represents the indefeasible con- the fishing quotas, or that the competent dition for attainment of the objectives national authorities did not adequately under Article 1 of Regulation No 170/83. monitor compliance with such rules. That consideration will therefore inform the assessment of the pleas and sub- missions.

2. Appraisal

53. In line with the general argument put in 56. First, it must be stated that the Com- its defence, 22 the United Kingdom Govern- mission has provided proof of a consider- ment contends that it is not possible for able number of cases of overfishing in the defects in the system of controls in the relevant period. In that connection it must relevant period to be inferred from specific be stressed that the Commission's figures cases of overfishing since to do so would have essentially not been contested. amount to an unlawful presumption. 23

57. In light of the judgment in Case C-333/99 25 the United Kingdom Govern- 54. The United Kingdom Government also ment's arguments on allocation of the points to the human and material resources burden of proof cannot be upheld. It may made available by it. indeed be inferred from the scale of quan- tities in excess of quota and the repetition of cases of overfishing that the cases of overfishing complained of were only poss- ible because the competent authorities did not comply with their obligations to carry out controls or did not do so adequately. 26 The United Kingdom Government's argu- 55. To the extent to which the Commission ment that the Commission relied on a mere alleges failure to adopt specific measures, presumption is therefore unsubstantiated. the United Kingdom Government refers to

24 — Commission v Austria [1999] ECR I-7479, paragraph 39. 22 — Sec above, point 43 et scq. 25 — Cited in footnote 2. 23 — Sec case-law cited in footnote 18. 26 — Also sec above, point 43 et seq.

58. Nor is the reference to the number of overfishing is attributable to anglo-Spanish quotas adhered to of any avail. In light of vessels. That bears out the Commission's the aim of conservation of individual stocks allegation that the United Kingdom auth- compliance with Community rules on the orities had not managed to have such conservation and management of fishery vessels subjected to regular checks in the resources cannot turn on whether a major- United Kingdom. ity of the quotas allocated to the Member State concerned have been adhered to. The decisive factor is rather the extent to which the Member State has adhered to each individual quota allocated to it. 61. It follows from all the foregoing that the United Kingdom has failed to fulfil its obligations under Article 5(2) of Regu- lation No 170/83 in conjunction with Article 1(1) of Regulation No 2057/82 and Article 1(1) of Regulation No 2241/87 59. That view of the matter is not altered respectively by not putting in place the by the judgment in Case C-328/96 cited requisite detailed rules for the utilisation of above. In that case the Commission the quotas allocated to it in respect of the inferred from the failure to adopt a meas- fishing management years 1985 to 1988 ure that there had been an infringement of and 1990 and by not ensuring in those the Treaty. However, the present case does years compliance with Community rules on not concern the adoption of or the failure the conservation of fish species by means of to adopt a specific measure, but the failure adequate supervision of fishing activities to achieve a specific result. As regards and appropriate controls of the fishing determination of the detailed rules for fleet, and of the landing and recording of utilisation of fishing quotas Community catches. law does not prescribe the adoption of specific measures but merely the adoption of measures which secure adherence to the quotas allocated to the Member State concerned. As a matter of principle the choice of measures to be adopted remains a matter for the Member States. In light of the cases of overfishing established by the C — Defective recording of landings of Commission the outcome of the action in certain mackerel catches in 1988 that respect does not depend on whether no measures at all or only inadequate meas- ures were adopted.

65. In its reply the Commission stresses that the system of recording catches was an essential precondition for the adoption of measures to prevent quotas from being 63. For its part the United Kingdom Gov- exceeded, so that the accuracy of reports ernment argues that the Commission has was of decisive importance. The United not produced proof of misreporting. More- Kingdom also disregards the fact that all over, the Commission relied on an esti- Member States have a duty under mation in assessing the scale of excess Article 9(1) of Regulation No 2241/87 to quantities. Irrespective of that matter, it ensure that all landings of stocks or groups contends that Article 9(2) of Regulation of stocks subject to TACs or quotas are No 2241/87 merely entails an obligation to recorded. The Commission also claims that forward to the Commission within the Article 9(4) of Regulation No 2241/87 was period specified such information as is infringed because the records concerning contained in the log-books. The United the quantity at issue were not kept in Kingdom complied with that requirement. accordance with requirements.

64. On this point as well the United Kingdom Government considers the Com- mission's submissions to be insufficient 66. According to the United Kingdom because the Commission did not mention Government the Commission is relying in the measures which in its view it was this connection on a letter not appended to necessary to adopt. The investigations con- the application. In light of Article 42(2) of ducted by the national authorities in con- the Rules of Procedure the allegations of

68. It should be observed that the United Kingdom acknowledges in principle the problems associated with the uncertainties as to the locations in which the mackerel quantity at issue was caught and on which the Commission based its view. The inves- tigations conducted in this regard by the United Kingdom authorities showed how- ever that the data recorded concerning catch areas were partly incorrect, though 71. Accordingly, the Member States' obli- it was not possible with any certainty to gation under Article 9(1) and (2) of Regu- attribute the quantities concerned to the lation No 2241/87 cannot merely be to correct zone. forward data collected by them to the Commission within the period specified. On the contrary, they must at the same time ensure at least to a reasonable extent that information provided is not incorrect or, where there is doubt as to the accuracy 69. It can therefore be regarded as estab- of information, they must use their best lished that part of the information concern- endeavours to cooperate in order swiftly to ing mackerel catches in 1988 has been clarify the matter. It should also be noted proven to be incorrect. that under Article 9(2) the Member States are specifically obliged to include in their notifications to the Commission infor- 27 — See above, point 43 et seq. mation concerning the location of catches.

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If the accuracy of such information were an infringement of Article 9(1) and (2) of not important, that obligation would Regulation No 2241/87: it has shown that become meaningless. 28 the information forwarded by the United Kingdom was plainly to a large extent unreliable. Yet in 1988 the United King- dom authorities neither ensured that the information reported to them was correct nor that the information forwarded by them to the Commission was sufficiently reliable. 72. The fact that the United Kingdom authorities did not adequately ensure that in 1988 a considerable quantity of mack- erel was correctly recorded by the compet- ent national authorities is sufficient to show that Article 9(1) of Regulation No 2241/87 has been infringed.

79. In its reply the Commission deliberately disregards cases of fishing in unauthorised zones in order to deal with the specific cases of overfishing. In that connection it asserts that the United Kingdom Govern- 77. Relying on case-law,30 the Commis- ment does not deny that the quotas at issue sion submits that it follows from Article 10 were already exhausted by the time the of Regulation No 2057/82 and Article 11 orders prohibiting further fishing took of Regulation No 2241/87 that the effect. Furthermore, the Commission dem- Member States are bound to take all onstrated on the basis of figures that at the appropriate steps in due time in order to time the orders took effect the quotas had prevent quotas allocated to the Member already been exhausted. It may be inferred States for the purpose of conserving fishery from the judgment in Case 290/87 Com- resources from being exceeded. The mission v Netherlands 33 that the Commis- requirement of timely action entails the sion has already discharged its duty to obligation to adopt mandatory measures adduce evidence if it indicates the level of even before exhaustion of the quotas in catches at the time when the prohibition order to ban any relevant fishing activity orders were imposed. In the present case as until further notice. It is alleged that the well that date is the only relevant one. United Kingdom authorities in all cases either took no action or did so belatedly.

2. Appraisal

81. It should be stated right away that a finding that the provisions cited have been infringed cannot be made to depend on proof by the Commission of specific catch levels where the Member State itself con- 84. For that reason practical difficulties, cedes that, in spite of the fact that quotas such as the landings of catches in Spain were exceeded, no measure at all was mentioned by the United Kingdom Govern- adopted. That the Commission provided ment, as well as the fluctuations in levels of figures in five cases only 36 may be catches in other Member States or non- accounted for by the fact that in the other Member States, cannot be relied on, par- cases no steps at all were taken temporarily ticularly since those difficulties were by no to prohibit fishing. means insurmountable and Community rules did not leave unregulated the question of the transmission of information between the Member States and between Member States and non-Member States. 38

82. The deficiencies in the measures adopted in connection with the cases of overfishing in the years 1985 to 1987 were accounted for on the part of the United Kingdom principally by the fact that those cases of overfishing were attributable to 85. Finally, the Commission's argument anglo-Spanish vessels. It was thus difficult that the suspension in 1990 of the fishing to obtain catch levels in due time, which in licences of vessels over 10 m in length is not turn explains the time when the measures equivalent to a temporary prohibition of at issue were adopted. fishing since not all vessels are affected by it must be upheld.

87. In light of all the foregoing the United Kingdom has infringed its obligations under Article 10(2) of Regulation (EEC) No 2057/82 and Article 11(2) of Regu- lation (EEC) No 2241/87 by not tempor- 89. For its part the United Kingdom Gov- arily prohibiting fishing of certain stocks, ernment asserts that under the Court's or not doing so in due time, when catches case-law 40 the Commission must point to could be deemed to have exhausted the 'precise and specific' facts from which the corresponding quotas. inference to be drawn is that the competent authorities of a Member State were system- atically refraining from taking action against persons responsible for such infringements. However, the Commission has not adduced such proof; it has been unable to identify a single case in which the United Kingdom authorities failed to take action where there was clear and sufficient E — Absence of penal or administrative evidence. sanctions

1. Parties' submissions

90. In regard to anglo-Spanish vessels the United Kingdom Government further sub- mits that the United Kingdom authorities 88. The Commission is of the view that the Member States were required by 39 — Article 1 of Regulation No 2057/82 originally made Article 1(2) of Regulation No 2057/82, in provision for that only in regard to skippers; the wider obligation under the wording of the later versions was the version applicable at the relevant times, already implied by the terms of Article 10 EC, however. or under Article 1 of Regulation 40 — Case 290/87 (cited in footnote 18), paragraphs 18 to 20, and Case C-52/95 (cited in footnote 30), paragraphs 33 to No 2241/87, to take penal or adminis- 36.

95. In its judgment in Case C-52/95 43 the Court addressed the significance of the obligation in question in light of the objec- tives pursued by the Community rules. 44 Since, however, in that case the breach of 92. First of all, it should be stated that the duty was uncontested, 45 the Court did not obligation to institute penal or adminis- at that time need to go into the question of trative proceedings in cases of non-com- the burden of proof. pliance with the provisions concerning conservation and control measures existed as a matter of principle both under Article 1(2) of Regulation No 2057/82, whether in the original version or as amended by Regulations Nos 3723/85 and 4027/86, and under Article 1(2) of 96. If the Commission had to prove system- Regulation No 2241/87. The question is atic failure to act on the part of the whether the Commission has adduced proof of an infringement by the United Kingdom of this obligation in the relevant 42 — Judgment in Case 290/87 (cited in footnote 18), paragraph period. 43 — Cited in footnote 30. 44 — See paragraph 35 of the judgment cited: 'If the competent authorities of a Member State were systematically to refrain from taking action against the persons responsible 41 — Council Regulation (EEC) No 3483/88 of 7 November for such infringements, both the conservation and manage- 1988 amending Regulation (EEC) No 2241/87 establish- ment of fishery resources and the uniform application of ing certain control measures for fishing activities (OJ 1988 the common fisheries policy would be jeopardised.' L 306, p. 2). 45 — Cf. para. 33 of the judgment cited.

97. In the present case the Commission stated in any event that during the whole of the pre-litigation phase the United King- dom failed, in breach of its obligations 99. Finally, it must be determined to what under Article 5 of Regulation No 2057/82 extent the evidence adduced by the United and Article 4 of Regulation No 2241/87, to Kingdom Government in the annex to the communicate to it information concerning rejoinder can be considered. It may be any such proceedings. The United Kingdom precluded by the second sentence of merely pointed to the difficulties arising Article 42(1) of the Rules of Procedure, from the fact that most of the vessels flying under which the reasons for the delay in the United Kingdom flag responsible for offering evidence must be stated. The cases of overfishing were not operating in reason given by the United Kingdom Gov- territorial waters. In that connection the ernment was that the delay in bringing United Kingdom is invoking a practical proceedings was so long that it was difficult difficulty which, however, under the to assemble the information. Even though Court's consistent case-law, is not sufficient the facts did in some cases occur a con- to justify failure to fulfil an obligation. 47 siderable time ago, this cannot explain why the United Kingdom did not deal with the matter already during the pre-litigation phase. The reasons given appear therefore to be insufficient.48

98. Nor is it possible to accept the United Kingdom Government's argument that there was no obligation to institute penal or administrative proceedings because the evidence was inadequate under national law, since the inadequacy is attributable to the fact that, in breach of obligations under 100. It follows from the abovementioned Community law, the national authorities considerations that the United Kingdom

(1) Declare that, in respect of the years 1985 to 1988 and 1990, the United Kingdom of Great Britain and Northern Ireland has failed to comply with its obligations under (a) Article 5(2) of Regulation (EEC) No 170/83 and Article 1(1) of Regulation (EEC) No 2057/82 (in respect of the period up to 1 August 1987) and Article 1(1) of Regulation (EEC) No 2241/87 (in respect of the subsequent period), (b) Article 10(2) of Regulation (EEC) No 2057/82 and Article 11(2) of Regulation (EEC) No 2241/87, (c) Article 9(1) and (2) of Regulation (EEC) No 2241/87 and (d) Article 1(2) of Regulation (EEC)

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No 2057/82 or Article 1(2) of Regulation (EEC) No 2241/87 in conjunction with Article 5(2) of Regulation (EEC) No 170/83 by

— failing to put in place appropriate detailed rules for the utilisation of the quotas allocated to it and to carry out inspections and other controls as required by the relevant Community regulations,

— failing provisionally to close, or to close in due time, fisheries in respect of certain stocks, when catches were deemed to have exhausted the relevant quotas,