C-140/00

OPINION OF MRS STIX-HACKL — CASE C-140/00

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 21 March 2002 1

I — Introduction C-454/99, the present case therefore chiefly concerns the question of the allocation of the burden of proof.

1. Like Case C-454/99, which relates to the years 1985 to 1988 and 1990, 2this action 3. The Court has already given a ruling on for failure to fulfil Treaty obligations con- that issue in its judgment in Case cerns the conduct of the United Kingdom C-333/99. 3The main question to be con- authorities in connection with the manage- sidered here, therefore, is whether, in the ment of fishing quotas in the years 1991 to light of the particular circumstances of this 1996. The Commission is essentially alleg- case, the Commission has met the require- ing that the United Kingdom authorities ments laid down in that case as to the failed effectively and in good time to ban burden of proof. fishing activities when particular quotas were near exhaustion, with the result that the catch quotas set by the Commission were exceeded in those years.

II — Legislation

2. The United Kingdom is essentially con- tending that the Commission has failed to 4. The Community rules on the conser- discharge its duty to adduce evidence of the vation and management of fishery Treaty infringements which it alleges, but resources are contained in a number of does not contest as a whole the cases of different regulations. They are intended to overfishing raised by the Commission in the ensure the protection of fishing grounds, relevant management years. Like Case

'Member States shall inform the Commis- 6. Article 3 of Regulation No 170/83 pro- sion each year of the criteria they have vides that where, in the case of a given adopted for distribution and of the detailed species, it becomes necessary to limit the rules for the use of the fishing availabilities catch, the total allowable catch for each allocated to them, in accordance with stock or group of stocks, the shares avail- Community law and the common fisheries able to the Community and, where appli- policy.' cable, the total catch allocated to third countries, as well as the specific conditions for taking these catches, are to be fixed each year. Regulation No 3760/92 contains analogous conditions.

9. Title I of Council Regulation (EEC) 4 —See Article 1 of Council Regulation (EEC)No 170/83 of No2241/87 6 is headed 'Inspection and 25 January 1983 establishing a Community system for the conservation and management of fishery resources control of fishing vessels and their activ- (OJ 1983 L 24, p. 1). Sec also Article 2 of Council ities'. Article 1(1) therein sets out the Regulation (EEC) No 3760/92 of 20 December 1992 estab- lishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1), which replaced Regulation No 170/83 as from I January 1993. S— Articles 2(2), 3 and 11 of Regulation No 170/83; 6 — ... of 23 July 1987 establishing certain control measures for Article 4(2) and Article 8 of Regulation No 3760/92. fishing activities (OJ 1987 L 207, p. 1).

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In carrying out the task thus conferred on them, Member States shall ensure that the '(1) All catches of a stock or group of provisions and measures referred to in stocks subject to quota made by fishing Article 1 are complied with. Moreover, their activities shall be carried out in such a way as to avoid undue interference with 7 — Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common normal fishing activities....' fisheries policy (OJ 1993 L 261, p. 1).

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vessels under the flag of a Member State or regard to penal and administrative pen- registered in a Member State shall be alties are contained in Article 1(2) of charged against the quota applicable to Regulation No 2241/87 and its successor, that State for the stock or group of stocks in Article 31 of Regulation No 2847/93. question, irrespective of the place of land- ing.

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(2) The proceedings initiated pursuant to meet the requirements of the Community paragraph 1 shall be capable, in accordance rules on the conservation and management with the relevant provisions of national of fishery resources. law, of effectively depriving those respon- sible of the economic benefit of the infringements or of producing results pro- portionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.' 19. That allegation was made in letters of formal notice of 19 March 1998 in respect of the years 1991 to 1994, and 19 February 1999 in respect of the years 1995 and 1996. The United Kingdom replied to those letters on 20 May 1998 and 4 May 1999 respect- 1 7 . A r t i c l e 3 1 ( 3 ) of R e g u l a t i o n ively. No 2847/93 contains a non-exhaustive list of sanctions.

20. On 26 August 1999 the Commission sent the United Kingdom two reasoned opinions under Article 226 EC because it continued to be of the view that the United I I I— Facts, procedure and forms of order Kingdom authorities had failed to adopt sought appropriate measures to resolve the prob- lems to which its allegations related. The United Kingdom replied to those reasoned opinions by two letters of 2 December 1999.

A — Facts and procedure

21. The Commission based its allegations on data contained in tables which were annexed to the letters of formal notice, the 18. The Commission is essentially alleging reasoned opinions and the application and that on various occasions the United King- in each year were drawn up on the basis of dom exceeded the catch quotas allocated to information provided by the United King- it for various fish stocks in the years 1991 dom authorities. Those tables show, for to 1994 and 1995 and 1996. In its sub- each of the years concerned, the areas in mission, these incidents show that national which and stocks for which overfishing conservation and control measures do not took place.

24. The United Kingdom explains that 26. The United Kingdom also submitted in those discrepancies arose as a result of regard to the failure to take penal or new information which led its authorities administrative measures against those to correct the data. The Commission, responsible for infringements that under however, takes the view that amendments national law prohibitions only apply as to data cannot be taken into account once regards the future. It was therefore imposs- infringement proceedings have begun. The ible to prosecute for fishing that occurred United Kingdom, on the other hand, says prior to the prohibition's entry into effect.

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Landings recorded after the order for 29. In its application, which was lodged at closure was made actually related to fish the Court Registry on 30 November 1999, caught prior to the date of entry into force the Commission claims that the Court of the order. should:

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— failing provisionally to close fisher- of proof in Treaty infringement proceed- ies when the quota was exhausted, ings concerning compliance with Commu- and nity rules on the conservation and manage- ment of fishery resources.

— failing to take administrative or penal action against the masters of ships infringing the regulations or A — General: allocation of the burden of against such other persons as were proof responsible for such infringement;

1. Parties' submissions

2. Order the United Kingdom to pay the costs.

alleged by it, since it has failed to take of those figures and the repetition of the account of the fact that the United King- situation which they describe that the dom disputes the figures relied on by it. 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 Gov- ernment's argument that the Commission is basing itself on no more that a presumption is for that reason unjustified.' 8 35. The Commission observes in the reply that the United Kingdom did not deny in the defence that significant overfishing took place during the period in question. It did not dispute that there was overfishing in 27 out of the 31 instances alleged by the Commission. 38. In my Opinion in Case C-454/99 I pointed out how judiciously that decision takes account of both the general principle of the allocation of the burden of proof in Treaty infringement proceedings and the peculiarities of the Community rules on the 36. The Commission also submits that, in conservation and management of fishery order to establish that a Member State has resources. To avoid repetition I would failed to comply with its obligations with therefore refer to my comments there. 9 regard to establishing an effective system for the control of quotas, it must show that the measures actually taken by the Member State could not achieve the Community objectives and that that failure is not the result of unforeseeable factors. Fur- 39. The significance of that decision for thermore it is not for the Commission to this case is that, in order to show that there describe in detail what measures should in has been an infringement of obligations its view have been taken. under the Community rules on the conser- vation and management of fishery resources, the Commission must set out in detail the repeated instances of significant overfishing.

42. Nor can the success of the Commis- sion's application for a declaration depend B — Failure to lay down appropriate on the number of individual instances of detailed rules for the utilisation of fishing overfishing. It is not for the Court of Justice quotas to determine how many instances of over- fishing occurred but rather the extent to which repeated instances of overfishing support the inference that the Member State in question failed to fulfil its obli- 1. Parties' submissions gations. Contrary to the view of the United Kingdom, it is therefore in principle imma- terial that individual figures are the subject of dispute, if the Commission has provided evidence of repeated instances of overfish- ing during the entire period in question by 45. The Commission claims that the United listing those instances. Kingdom failed to fulfil its obligations

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under Article 5(2) of Regulation 47. The United Kingdom claims, in line No 170/83 and — as from 1 January with its general argument in defence, 10 that 1993 — under Article 9(2) of Regulation the individual cases of overfishing alleged No 3760/92 by not laying down detailed by the Commission cannot justify a general rules for the appropriate utilisation of finding of failure to comply with the fishing quotas. It submits that it is for the applicable provisions. Member States to put in place sufficiently flexible detailed rules to take into account the difficulties arising in relation to fisher- ies in non-Community waters, too. The Member States are also under a duty to check that the rules are complied with.

46. Since it has been shown that the United Kingdom fishermen frequently exceeded the quotas which were set for them, either the detailed rules adopted by the United Kingdom authorities were not appropriate or those authorities did not check com- pliance with the rules. In particular the 49. The United Kingdom argues that even applicable provisions of national law in the if it were possible to conclude from the fact period in question failed to ensure that that quotas had been exceeded that there declarations of landings or logbook entries was a failure to comply with the applicable were processed swiftly. Nor did they enable provisions, several of the instances of over- decisions to close fisheries to be taken fishing alleged by the Commission would sufficiently early to allow for quantities of exceed the relevant quota by less than 5%. fish which had already been caught but not yet landed, or to take account of the lapse of time between the decision to close being 10 — See above, points 32 et seq. taken and its coming into effect. The 11 — In this connection it refers to the judgment in Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph Commission also notes that the United 61, in which the Court stated that '...in proceedings under Article 169 of the Treaty, the Commission is required to Kingdom succeeded in 1998 and 1999 in establish the existence of the alleged infringement and may resolving that problem by adopting strin- not rely on any presumption'. 12 — Commission v France [1990] ECR I-925, paragraphs 35 to gent measures. 38.

50. The Commission argues in the rejoinder that the period at issue preceded the entry into force of Regulation No 847/96. In addition the United King- 52. It follows from the judgment in Case dom has not denied 23 instances of sig- C-333/99ls that the Commission may nificant overfishing 14 over the whole demonstrate a failure to comply with the period in question, which is sufficient to obligation arising under Article 5(2) of show a failure to comply with the appli- Regulation No 170/83, which is to lay cable provisions. down the detailed rules for appropriate utilisation of fishing quotas, by adducing evidence of repeated incidents of significant overfishing. In that connection the Court expressly referred to its decision in Case C-62/8916 and stated that the particulars which, so it held in that case, must be set out in detail consist in substantiated evi- 51. As regards the question whether the dence from the Commission of repeated data on the four instances of overfishing instances of overfishing. that are contested may be corrected retro- spectively, the Commission argues that the United Kingdom did not explain, or prove

13 —Council Regulation (EC) No 847/96 of 6 May 1996 53. It is common ground between the introducing additional conditions for year-to-year manage- parties in this case that several instances ment of TACs and quotas (OJ 1996 L 115, p. 3). 14 — Of the 31 instances alleged by the Commission the United Kingdom disputes the underlying figures in four instances (sec point 35 above). The United Kingdom's argument in relation to Regulation No 847/96 relates to four further 15 — Cited in footnote 3. instances. 16 — Cited in footnote 12.

55. It must also be observed that it was certainly open to the United Kingdom to bring evidence that the Commission's fig- ures do not correspond to the actual facts. The Commission is right to note that a retrospective correction of data cannot affect the assessment of whether individual obligations under the Community rules for 56. I accordingly consider that the Com- the conservation and management of mission's application should be upheld and fishery resources have been complied with, the United Kingdom found to have failed to since both the national authorities and the fulfil its obligations under Article 5(2) of Commission's staff must reach their Regulation No 170/83 and Article 9(2) of decision on the basis of contemporaneous Regulation No 3760/92 by failing to put in place appropriate detailed rules for the utilisation of the quotas allocated to it in 17 — The regulation entered into force on 1 January 1997 the years 1991 to 1996. pursuant to Article 6. 18 — The second sentence of Article 3(2) of Regulation No 847/96 expressly states; 'However these catches shall be considered as exceeding permitted landings as regards the deductions envisaged in Article 5'. 19 — See point 40 above.

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C — Defective control measures under sion retrospectively correct its data that the Article 1(1) of Regulation No 2241/87 system used by the United Kingdom in the and Article 2 of Regulation No 2847/93 years 1991 to 1996 was incapable of providing accurate data on the status of catches.

1. Parties' submissions

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pliance with obligations under those provi- instances of overfishing in the years 1991 to sions may certainly be drawn from repeated 1996 were attributable to inadequate con- instances of overfishing. The documents trols. It further observed that in several show that the Commission has proven cases there was no national order for repeated instances of overfishing during closure of fisheries and in those cases where the period in question. 23 such an order was made, landings con- tinued to be made even after the order for closure. That too militates against a finding that the United Kingdom complied with its supervisory duties, particularly since, as the Commission pointed out, 26 problems were apparently able to be resolved later. Finally, the United Kingdom itself 61. Likewise, the Commission is also cor- acknowledged that some of its data needed rect in concluding that the fact that the to be corrected. It may be concluded that in United Kingdom asked the Commission to such cases the United Kingdom authorities correct retrospectively the information it did not have access to reliable data that had suggests that it did not comply with its would have enabled them to make a timely obligations under the provisions in ques- order for closure of fisheries. The Commis- tion. In my Opinion in Case C-454/99 24 I sion has therefore adduced sufficient evi- emphasised the importance of reliable data dence to prove a failure to fulfil obligations on catches for the attainment of the objec- under Article 1(1) of Regulation tives of the Community rules on the con- No 2241/87 and Article 2 of Regulation servation and management of fishery No 2847/93. resources. 25 If the Member State by its own admission produces unreliable data then it seems reasonable to assume that it did not properly supervise compliance by fishermen with the duty to provide infor- mation. Whilst the fact that the Member State in question is concerned that incorrect data should be corrected is in principle to be welcomed, it should be done when the corrected data can still be used for the purposes of the management of fishery resources.

catches, the United Kingdom has failed to 65. The United Kingdom, on the other fulfil its obligations under Article 1(1) of hand, argues that the fact that there are Regulation No 2241/87 and Article 2 of discrepancies between the figures relied on Regulation No 2847/93. by the Commission and the figures avail- able to it at the relevant time cannot be ignored. This is attributable first of all to the system for logging the data and also in particular to landings made in third coun- tries of which the United Kingdom was informed by the captains of the vessels, whereas the Commission has available to it figures from the competent authorities in D — Delayed closure of fisheries all the Member States. The United King- dom also regards the declaration sought by the Commission as too general, particularly as it ensured that the overwhelming major- ity of the quotas were complied with in the period in question. 1. Parties' submissions

68. Both during the pre-litigation pro- cedure and during the written procedure, the United Kingdom explained its failure to order the closure of fisheries, or its order to 71. In those instances where an order for close them at the time that it did so — closure was made, the Commission has apart from the discrepancies in data already satisfactorily proved, by means of the referred to — by the fact that the weather volumes of fish that had been caught at conditions made it difficult to attribute the time when the order for closure took catches to particular quotas and fluctu- effect, that the United Kingdom did not ations in volumes of catches made it succeed in provisionally suspending fishery difficult to record the quantities of fish activities in sufficient time before the landed, and thus, where appropriate, to relevant quotas allocated to it were order closures in time. exhausted.

69. It is the consistent case-law of the 72. It follows from all of the foregoing that Court that a Member State cannot rely on the United Kingdom failed to fulfil its practical difficulties in order to justify its obligations under Article 11(2) of Regu- failure to adopt effective control measures. lation No 2241/87 and, as from 1 January On the contrary, it is for the Member States 1994, under Article 21 of Regulation responsible for implementing Community No 2847/93, in not prohibiting fishing of regulations in the fishery product sector to particular stocks or not doing so in good overcome those difficulties by adopting time when the corresponding quotas were appropriate measures. 30 deemed to have been exhausted by fishing activities.

73. The Commission takes the view that 75. The United Kingdom submits that the measures provided for by Article 1 of throughout the period in question its policy Regulation No 2241/87 and Article 31 of was to bring forward for prosecution any Regulation No 2847/93 relating to those cases which disclosed evidence that would responsible for infringements of the provi- satisfy a criminal court that an offence had sions on the conservation and control been committed. The United Kingdom measures include bringing penal or admin- refers to the list annexed to the defence istrative proceedings against those respon- showing the number of prosecutions taken sible. 32 In that connection the Commission and official warnings given in respect of underlines the significance of that obli- vessels which ignored a ban on fishing or gation for the conservation of fishery fished in an area for which the United resources. Article 31 of Regulation Kingdom did not have any quota. No 2847/93 expressed that obligation even more clearly in requiring that the sanctions deprive those responsible of the economic benefit of the infringement.

80. In my Opinion of 5 March 2002 in Case C-454/99 33I demonstrated how the fact that the Commission in principle bears the burden of proof does not rule out a duty 77. In the reply the Commission observes on the part of the Member States to that the number of prosecutions bears no communicate the measures adopted by relation to the extent of the overfishing. them. 34 Furthermore, it is not clear from the list provided by the United Kingdom whether actions were brought in every case of overfishing. In addition it is not possible for the Commission to ascertain why relatively few prosecutions were brought 81. The United Kingdom admits in the even though fishing was proven to have defence that it took action against those continued after fishing was banned. responsible for infringements only in iso- lated cases. It has therefore substantiated its claim that at least some prosecutions were brought against those responsible for infringements. The Commission's appli- cation for a general declaration that the United Kingdom failed to fulfil its obli- gation to bring penal or administrative 2. Appraisal proceedings against those responsible for infringements cannot therefore be granted in that form.

78. It is common ground between the parties that there is a duty on the Member 82. None the less it is necessary to consider States to bring penal or administrative whether the United Kingdom failed to fulfil proceedings in the event of failure to comply with the provisions relating to the conservation and control measures under 33 — Cited in footnote 2, points 94 et seq. b o t h A r t i c l e 1(2) of R e g u l a t i o n 34 — It is sufficient in this connection to look to Article 4 of Regulation No 2241/87: 'Member States shall at regular No 2241/87 and Article 31 of Regulation intervals provide the Commission with information on... the action taken by them with respect to such infringe- No 2847/93. ments.'

83. The United Kingdom's argument that it could not bring penal or administrative penalties on the basis that there was not sufficient evidence under national law can- not be upheld because the lack of evidence 85. It is therefore clear from the foregoing is possibly attributable to the national considerations that the United Kingdom authorities' failure adequately to supervise has infringed Article 1(2) of Regulation fishing and related activities, contrary to its (EC) No 2241/87 and Article 31 of Regu- Community obligations. In advancing that lation No 2847/93 by instituting adminis- argument the United Kingdom is essentially trative or penal proceedings against those seeking to justify a later infringement of responsible for infringements in too few Community law by an earlier one. Fur- cases. thermore the Court has already stated as regards national requirements relating to penal prosecution that 'it is settled case-law that a Member State cannot plead provi- sions, practices or situations in its internal legal system to justify non-compliance with obligations and time-limits arising from rules of Community law'. 35 V — Costs

86. Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the United 84. That principle may also be applied to Kingdom has been unsuccessful and the the examples cited by the United Kingdom. Commission has applied for an order in The expectation of a planned quota that connection, the United Kingdom must exchange cannot justify a failure to bring be ordered to pay the costs. penal or administrative proceedings against

— failing to put in place appropriate detailed rules for the utilisation of quotas allocated to it,

— not carrying out inspections and other controls as required by the relevant Community regulations, I - 10402

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— failing provisionally to close fisheries when the quota was exhausted,

— taking administrative or penal action against the masters of the ships infringing the regulations or against such other persons as were responsible for such infringement in too few cases;

(2) Order the United Kingdom of Great Britain and Northern Ireland to pay the costs.