C-418/00

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5. To attain these objectives conservation 1993. Article 9(2) of the latter regulation and control measures need to be taken. 4 establishes what is clearly a comparable obligation:

6. These measures include the inspection of '2. Member States shall inform the Com- fishing vessels and the monitoring of mission each year of the criteria they have catches. They are provided for in adopted for distribution and of the detailed Article 5(2) of Regulation No 170/83 in rules for the use [of] the fishing availabil- conjunction with Article 1(1) and (2) and ities allocated to them, in accordance with Article 2(2) of Regulation No 2241/87. 5 Community law and the common fisheries policy.'

7. Article 5(2) of Regulation No 170/83 9. Title I of Regulation No 2241/87 7 reads provides inter alia: 'Inspection and control of fishing vessels and their activities'. Article 1(1) thereof specifies the content of the obligation aris- ing from Article 5(2) of Regulation No 170/83:

'1. In order to ensure compliance with all '1. The inspection and monitoring referred the rules in force concerning conservation to in Article 1 shall be carried out by each and control measures, each Member State Member State on its own account by an shall, within its territory and within mari- inspectorate appointed by it. time waters subject to its sovereignty or jurisdiction, monitor fishing activity and related activities. It shall inspect fishing vessels and investigate all activities thus enabling verification of the implementation of this Regulation, including the activities of landing, selling, transporting and storing In carrying out the task thus conferred on fish and recording landings and sales. them, Member States shall ensure that the provisions and measures referred to in Article 1 are complied with. Moreover, their action shall be carried out in such a way as to avoid undue interference with normal fishing activities.... 2. Fishing vessels, which may exercise activities, flying the flag of third country and sailing in maritime waters subject to the sovereignty or jurisdiction of a Member State shall be subject to a system of communication of movements and of 2. The persons responsible for the fishing catches held on board. vessels inspected shall cooperate in facili- tating inspections carried out in accordance with paragraph 1.'

Member States shall notify the Commission of the measures taken to ensure compliance with these procedures. 11. Regulation No 2241/87 was replaced by Regulation No 2847/93 8 on 1 January 1994. Article 2 of Title I of the latter

13. The first two paragraphs of Article 21 in Title IV, 'Regulation and suspension of fishing a c t i v i t i e s ' , of Regulation No 2847/93 read: 12. Suspension of fishing activity was gov- erned by Article 11 of Regulation No 2241/87 and then by Article 21 of Regulation No 2847/93. The first two paragraphs of Article 11 of Regulation No 2241/87, which appear in Title III, 'Prohibition of fishing activities', provide: '1. All catches of a stock or group of stocks subject to quota made by Community fishing vessels shall be charged against the quota applicable to the flag Member State for the stock or group of stocks in question, irrespective of the place of landing. '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 charged against the quota applicable to that State for the stock or group of stocks in question, irrespective of the place of land- 2. Each Member State shall determine the ing. date from which the catches of a stock or

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OPINION OF MRS STIX-HACKL — JOINED CASES C-418/00 AND C-419/00

group of stocks subject to quota made by measures are not being complied with, they the fishing vessels flying its flag or regis- shall take penal or administrative action tered in that Member State shall be deemed against the master of such a vessel or any to have exhausted the quota applicable to it other person responsible.' 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 transshipment and the landing of fish taken after that date and shall decide on a date up to which transshipments and landings or final declarations of catches are permitted. The Commission shall be noti- 16. Article 31 of Regulation No 2847/93 fied forthwith of this measure and shall for its part provides: then inform the other Member States.'

17. The Commission initiated two infringe- ment procedures against the French Repub- lic for failure to fulfil Treaty obligations, — fines, one concerning the 1991 to 1994 fishing years and the other the 1995 and 1996 fishing years.

— seizure of prohibited fishing gear and catches,

A — The 1991 to 1994 fishing years

— sequestration of the vessel, 18. By letter of 16 January 1996 the Com- mission brought it to the French Govern- ment's attention that the French fishing quotas for 1991 to 1994 for various stocks had been exceeded. It complained in par- — temporary immobilization of the ticular that the French authorities had vessel, failed to fulfil their control obligations and called upon them to communicate the data on catches and landings on which they had based their decision temporarily to prohibit fishing, together with any further information concerning proceedings insti- tuted against persons responsible for over- — suspension of the licence, fishing (hereinafter called 'those respon- sible').

— withdrawal of the licence. 19. By letter of 16 April 1996 the French authorities acknowledged overfishing of the stocks referred to by the Commission. They indicated further that they were unable to trace the records of the proceed- 4. ...' ings that had been instituted.

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21. In their reply of 7 August 1998 the French authorities disputed the alleged 23. By letters of 3 February and 11 No- infringements and argued that they had vember 1997 the Commission brought it to taken all necessary measures as soon as it the French Government's attention that the became clear from the statistics that a French fishing quotas for 1995 and 1996 fishing quota had been, or was about to for various stocks had been exceeded and be, exhausted. that a temporary prohibition of fishing had not been imposed at an appropriate time. It called upon the French authorities to pro- vide it with the data on catches and land- ings on which they had based their decision to suspend fishing temporarily, together with information concerning penal or 22. As this letter did not in the Commis- administrative proceedings instituted sion's view dispel the suspicion of a failure against those responsible. to fulfil obligations, it sent the French Government a reasoned opinion on 30 Sep- tember 1999. In its reply of 7 December 1999 the French Government did not dispute the breaches of fishing quotas found by the Commission and acknowl- edged that the national provisions in force at the time had not allowed it to suspend 24. By letters of 3 April 1997 and 26 fishing in good time; it did however January 1998 the French authorities emphasise that as from 1998 an emergency pointed to errors in the figures presented procedure had been in force allowing the by the Commission, informing it also that timely imposition, by means of ministerial they had not succeeded in locating the decrees, of temporary bans on fishing. With records of the penal or administrative regard to the alleged failure to institute proceedings that had been instituted. They

26. In their reply of 27 April 1999 the French Government denied the infringe- ments claimed by the Commission, with regard in particular to mackerel in 1996. It emphasised that although it had taken all requisite measures as soon as it appeared from the statistics that a fishing quota had C — Claims of the parties been, or was about to be, exhausted, certain instances of overfishing were attributable to overseas landings by vessels flying the French flag of which the French authorities had been informed late and to 28. Both applications were lodged at the the continuation of fishing in the interval Court Registry on 13 November 2000.

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Case C-418/00 quota had been largely exceeded, in the 1991, 1992, 1993 and 1994 fishing years;

29. The Commission claims that the Court should:

— by failing to take penal or adminis- trative proceedings against any master of a vessel or other persons responsible for fishing after the prohibition thereof, as regards the (1) declare that 1991,1992,1993 and 1994 fishing years,

the French Republic has failed to fulfil (1) declare that its obligations under Article 9(2) of Regulation (EEC) No 3760/92 13 and Articles 2, 21 and 31 of Regulation (EEC) No 2847/93 14 in conjunction with R e g u l a t i o n s (EEC) Nos — by failing to determine appropriate 3362/94 15 and 3074/95; 16 detailed rules for the utilisation of the quotas allocated to it for the fishing years 1995 and 1996;

— by failing to ensure compliance with the Community provisions (2) order the French Republic to pay the on the conservation of stocks costs. through sufficient monitoring of fishing catches, appropriate inspec- tion of the landings and regis- tration of catches;

35. In its combined defence the French Republic questions the admissibility of 32. In its reply the Commission requests both applications, contending that they the Court to disregard the French Repub- clearly seek to secure a condemnation of lic's defence on the ground that it failed to France in principle, thereby failing to take meet the formal requirements of due account of the efforts made by that Article 40(1) of the Rules of Procedure. Member State.

33. This issue has already arisen in Case C-333/99, 17 when the Court did not deem it necessary to take a position on the 2. Analysis matter.

36. The Court has already adjudicated on 34. In the present case it would seem this contention in Case C-333/99. 18 inappropriate to disregard the French Republic's defence — regardless of the legal basis — having regard to the pro- tection of the rights of the defence. In Case C-333/99 Advocate General Alber rightly observed that an intention to apply for the 37. In paragraph 23 of its judgment the action to be dismissed was to be inferred Court recalls as follows its consistent case- from the very existence of a defence. It is law on the admissibility of actions for therefore proposed that the Court interpret failure to fulfil Treaty obligations: the defence in this sense.

18 — In that case the time that elapsed between the alleged 17 — See the Opinion of Advocate General Alber in Case breach of obligation and the legal proceedings did however C-333/99 (cited in footnote 2), point 26. prompt additional doubts as to admissibility.

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19 — See point 29 et seq. above. 39. In both cases the Commission claims 20 — See paragraphs 28 and 38 of the judgment (cited in that the Court should declare that the footnote 2).

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made for more effective monitoring of the 45. Firstly, the French authorities had not rate of take-up of quotas and hence in the Commission's opinion taken suffi- allowed fishing activity to be prohibited ciently diversified and effective measures to in good time. control the utilisation of their fishing quotas. 2 2 Secondly, they had not adequately monitored fishing and associ- ated activities. Lastly, they had not carried out appropriate inspection of fishing vessels and of the landing, selling and storing of fish. The Commission considers that effec- tive control measures would have enabled the fishing quotas to be observed and Assessment fishing to be suspended in good time.

43. It is proposed to examine this claim in conjunction with the claim of failure to take control measures. 21

46. The Commission observes in particular that the breaches of quotas apparent from the tables attached to both letters of formal notice attest to the French authorities' failure to take in good time the control measures that were necessary to prevent 2. Failure to take control measures fishing in excess of the quotas allocated to them for the species referred to therein. Citing Case 262/87, 23 the Commission maintains that it is incumbent on a Member State, where it encounters practi- cal difficulties in introducing effective con- trol arrangements, to take appropriate Arguments of the parties measures to overcome those difficulties.

50. According to these rules French fisher- men would be allowed to fish up to 2 770 tonnes of mackerel in the North Sea over 48. The Commission states in response that and above the national quota in the Eastern the national authorities have access to an zones. It follows that the difference 'instrument' providing direct information between the actual total catch and the concerning catches landed overseas by 1 270 tonne quota was to be counted vessels flying the French flag. Under para- against the flexible fishing entitlement of graph 4.2.2 of Annex IV to Regulation 2 770 tonnes and did not therefore repre- (EEC) No 2807/83 24 masters of vessels are sent a breach of quota. required to supply the original of the log-book and the first copy of the landing declaration to the French authorities within 48 hours of completion of landing. The French Government had not however pro- vided any information concerning checks carried out in that connection. 51. The Commission observes, however, on this point that despite the rules on flexibility the overall quota had been exceeded. And yet it had not been informed of any measures taken against those responsible.

56. The recurrence of quota violations during the period concerned is also essen- tially undisputed. For the 1991 to 1994 fishing years the Commission alleges two to Assessment four quota overruns per year and for the following two years as much as four and seven overruns. The French Republic con- fines itself to drawing attention to its 54. It should first be noted that the efforts and to what it sees as a trend breaches of quotas complained of by the towards an improvement in its manage- Commission are essentially undisputed, as ment of fishery resources. The Court has in Case C-333/99. 25 This assessment is not already observed on this point, in its judg- in any way altered by France's assertions ment in Case C-333/99, 27 that '[a]lthough concerning mackerel catches in the 1996 those efforts led to a reduction in the extent fishing year, three further quota violations to which quotas were exceeded, they can- being claimed by the Commission for the not excuse the failures that occurred'. 1996 fishing year. The French Government has not at all events substantiated its contention that the quantities in excess of quota had been fished in areas covered by the flexibility measures. The Commission is also right in asserting with regard to herring catches that it is not required to take account of figures that were not 57. In so far as the French Government supplied until the proceedings were already relies in this connection on the difficulty of underway, since the Commission must be incorporating overseas landings in its stat- notified of the quantities fished within a istics, this too is incapable of invalidating specified period. 26 the complaint. Apart from the fact that France's submission concerning the reasons for the quota violations is not substanti- ated, the Commission rightly emphasises that Community legislation has addressed this issue, laying down special obligations 55. Nor is it disputed that in the case of a to supply information in the case of over- number of stocks landings continued even seas landings. Even if the repeated breaches of quota could be attributed to landings

59. Clearly therefore the overfishing was possible only because the French auth- 61. Citing the judgment in Case C-52/95 30 orities failed to comply with their monitor- the Commission considers France to have ing obligations. 29 infringed Article 11(2) of Regulation No 2241/87. Under that provision, each Member State is required to determine, on the basis of the available information on catches, the expected date of exhaustion of the quota and take in good time whatever 60. It is to be concluded from the foregoing measures are required to enable fishing to that, by failing to determine the appropri- be provisionally prohibited as from that ate detailed rules for the utilisation of the date. In the Commission's view this analy- quotas allocated to it for the fishing years sis is applicable to the successor provision 1991 to 1996 and by failing to ensure in Article 21(2) of Regulation No 2847/93 compliance with the Community rules on in view of its similar wording. the conservation of stocks through suffi- cient monitoring of fishing catches, appro- priate inspection of landings and regis- tration of catches, the French Republic has failed to fulfil its obligations under 62. The Commission points out that the 28 — See the judgment cited in footnote 2, paragraph 36, and French authorities were particularly tardy the judgment, cited therein, in Case C-71/97 Commission v Spam [1998] ECR I-5991, paragraph 15. 29 — See also the judgment in Case C-333/99 cited in footnote 2, paragraph 35. 30 — Commission v France [1995] ECR 1-4443.

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64. The French Government argues further that it did not wait until the fishing quotas were exhausted to issue prohibitions on fishing. French law did however require 15 67. The Commission complains in essence days to elapse between the date on which a that the French Republic either failed to prohibition decision was issued and its provisionally prohibit fishing activity or entry into force by publication in the else did so too late. The data adduced by Journal officiel de la République Française the Commission have not in any way been (French official journal). The quota viol- disputed. It can be concluded therefore that ations were attributable to the continuation in the fishing years at issue, temporary bans of fishing during those periods. When it on fishing activity were either not imposed became clear that this interval was too long or imposed too late, in the instances cited an emergency procedure was introduced by the Commission. shortening it to six days.

65. The Commission states in response that 68. Here again it should be emphasised a Member State is required, when deter- that the new Community provisions have mining the effective date of suspension, to not substantially modified the legal situ- take account of the lapse of time between ation in this respect. the issue of the prohibition on catches and the actual entry into force of the prohib- ition by virtue of publication. It concludes 31 — Cited in footnote 2, paragraphs 39 and 45.

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69. Concerning the technical difficulties or supervision the competent authorities in a times to publication of ministerial decrees Member State are required, under invoked by the French Republic, it is Article 1(2) of Regulation No 2241/87 likewise sufficient to refer to the consistent and Article 2 of Regulation No 2847/93, case-law of the Court already cited. 32 to institute penal or administrative pro- ceedings against those responsible. The Commission contends that Article 31 of Regulation No 2847/93 does not in any way modify that requirement.

OPINION OF MRS STIX-HACKL — JOINED CASES C-418/00 AND C-419/00

men. It argues that penalties imposed on sible for breaches of quotas. The Commis- the producers' associations responsible for sion points out that this draft had not been managing the national quotas are of an brought to its attention, as required by the economic nature in so far as, where the second paragraph of Article 38 of Regu- sub-quota allocated to a producers' associ- lation No 2847/93. ation has been exhausted, the quantities fished in excess of that figure are taken into account the following year in calculating the scale used to divide the national quota among the producers' organisations.

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ascertained in port, for example when 82. It must be found that for the 1991 to catches are landed or transshipped. 1994 fishing years the failure to take penal action is essentially undisputed.

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sub-quota even before the commencement ing this period. The collective quota man- of fishing activity in a given fishing year, agement system is not so much a system for the system does not guarantee that the imposing penalties as a scheme for exploit- producers' association concerned will be ing quotas. 39 prevented from exercising that activity.

88. From all this, it is to be concluded that, by failing to take penal or administrative 85. The French Government did moreover proceedings against any master of a vessel expressly acknowledge in Case C-333/99 or other persons responsible for fishing that it did not introduce a system of after the prohibition thereof, as regards the administrative penalties until 1997. 1991 to 1996 fishing years, the French Republic has failed to fulfil its obligations under Article 5(2) of Regulation No 170/83 in conjunction with Article 1(2) of Regulation No 2241/87 and Article 31 of Regulation No 2847/93.

86. With regard to the 1995 and 1996 fishing years, it should be noted as a general point that Article 31 of Regulation No 2847/93 has rendered Member States' obligations more stringent in respect of the proceedings to be instituted as these must henceforth be capable of 'effectively depriv- V — Costs ing those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind'.

89. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is required to pay the costs. The French Republic having failed in its pleas and the Commission having applied for the costs to be paid by the French Republic, the latter should be ordered to pay the costs. 87. The Commission must therefore be regarded as right in holding that the French system was particularly unsatisfactory dur- 39 — See also point 75 above.

— by failing to determine the necessary detailed rules for the utilisation of the quotas allocated to it for the 1991 to 1994 fishing years and by failing, in those years, 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, landings and the registration of catches,

— by not provisionally prohibiting fishing by vessels flying the French flag or registered in France when the catches taken had been deemed to have exhausted the corresponding quota and, possibly, by finally suspending fishing after the quota had been largely exceeded, as regards the 1991 to 1994 fishing years,

— by failing to take penal or administrative proceedings against any master of a vessel or other persons responsible for fishing after the prohibition thereof, as regards the 1991 to 1994 fishing years, I - 3993

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the French Republic has failed to fulfil its obligations under (i) Article 5(2) of 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) and (2) of Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities and Article 9(2) of Regulation (EEC) No 3760/92 of 20 December 1992 estab- lishing a Community system for fisheries and aquaculture and Article 2 of Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy and under (ii) Article 11(1) and (2) of Regulation No 2241/87 and Article 21(1) and (2) of Regulation No 2847/93 and under (iii) Article 5(2) of Regulation No 170/83 in conjunction with Article 1(2) of Regulation No 2241/87 and Article 31 of Regulation No 2847/93;

exhausted the corresponding quota and, possibly, by finally suspending fishing after the quota had been largely exceeded, as regards the 1995 and 1996 fishing years,

— by failing to take penal or administrative proceedings against any master of a vessel or other persons responsible for fishing after the prohibition thereof, as regards the 1995 and 1996 fishing years,

the French Republic has failed to fulfil its obligations under (i) Article 9(2) of Regulation No 3760/92 and Article 2 of Regulation No 2847/93 and under (ii) Article 21(1) and (2) of Regulation No 2847/93 and under (iii) Article 31 of Regulation No 2847/93;

(2) order the French Republic to pay the costs.

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