C-263/02

COMMISSION v JÉGO-QUÉRÉ

OPINION OF ADVOCATE GENERAL JACOBS delivered on 10 July 2003 1

1. In this case, the Commission appeals decision which, although in the form of a against a judgment of the Court of First regulation or a decision addressed to Instance 2declaring admissible an applica- another person, is of direct and individual tion brought by Jégo-Quéré et Cie SA concern to the former'. (hereafter 'Jégo-Quéré') under the fourth paragraph of Article 230 EC for the annulment of Articles 3(d) and 5 of Commission Regulation (EC) No 1162/2001 of 14 June 2001 establishing measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d, e and 3. In order to show that it has the requisite associated conditions for the control of standing to proceed with its application, activities of fishing vessels. 3 Jégo-Quéré therefore needs to demonstrate among other things that the provisions of the regulation which it seeks to contest are of 'individual concern' to it.

2. The fourth paragraph of Article 230 EC provides that: 4. The traditional interpretation of 'indivi- dual concern' is that laid down by the Court of Justice in Plaumann v Commis- sion 4 whereby natural or legal persons may be regarded as individually concerned by a measure not addressed to them only if it affects their position by reason of certain 'Any natural or legal person may ... attributes peculiar to them, or by reason of institute proceedings against a decision a factual situation which differentiates them addressed to that person or against a from all other persons and distinguishes them individually in the same way as the addressee. 1 — Original language: English. 2 — Case T - 1 7 7 / 0 1 Jégo-Quéré v v Commission [ 2 0 0 2 ] ECR II- 2365. 4 — Case 25/62 [1963] ECR 9 5 , at p. 107 of the judgment. 3 — OJ 2001 L 159, p . 4.

6. The Court of First Instance's reasoning must now be assessed in the light of the Court of Justice's subsequent judgment in Unión de Pequeños Agricultores, 5which 9. Pursuant to its power under Article 15 upheld the traditional interpretation of of Regulation No 3760/92, the Commission

5 — Case C-50/00 P [2002] ECR I-6677. 6 —OJ 1992 L 389, p. 1.

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adopted Regulation (EC) No 1162/2001 2002. Prohibitions substantially similar to (hereinafter referred to as 'the regulation' or those which it contained have subsequently 'the contested regulation'). 7 The aim of the been enacted in Commission Regulation No regulation was to reduce catches of juvenile 494/2002 of 19 March 2002 establishing hake. It applied to fishing vessels operating additional technical measures for the recov- in the areas defined by it, and imposed ery of the stock of hake in ICES sub-areas upon them minimum mesh sizes, varying III, IV, V, VI and VII and ICES divisions according to the areas concerned and the VIII a, b, d, e. 8 different net fishing techniques employed, irrespective of the type of fish which a given vessel sought to catch.

16. It began by recalling the traditional interpretation of individual concern, laid down by the Court of Justice in Plaumann v Commission, 13 whereby natural or legal persons will be regarded as individually concerned by a measure not addressed to 14. The Court of First Instance held, first, them if it affects their position by reason of that the contested provisions were, by their certain attributes peculiar to them, or by n a t u r e , of general application, being reason of a factual situation which differ- addressed in abstract terms to undefined entiates them from all other persons and classes of persons and applying to objec- distinguishes them individually in the same tively determined situations. 9 However, it way as the addressee. 14 concluded, on the basis of settled case-law, that they could none the less form the subject of an application for annulment under Article 230 EC provided that they could be shown to be of direct and individual concern to Jégo-Quéré. 10

17. Applying that traditional interpretation to the present case, the Court of First Instance noted that the contested regulation affected Jégo-Quéré only in its objective capacity as a fishing company operating by a certain method and in a certain area, in 15. The Court of First Instance found the the same way as any other economic criterion of direct concern to be fulfilled in operator actually or potentially in the same the present case, 1 1but concluded that Jégo- situation. 15 N o r were there any particular Quéré could not be regarded as individually circumstances which would impose upon concerned on the basis of the criteria

18. The Court of First Instance then turned to consider Jégo-Quéré's argument that, were its action to be dismissed as inad- missible, it would be denied any legal 21. First, it considered the possibility of remedy enabling it to challenge the legality proceedings before a national court giving of the contested measure. rise to a reference to the Court of Justice for a preliminary ruling under Article 234 EC. It noted that, in a case such as that before it, there are no implementing measures cap- able of forming the basis of an action before national courts. In its view, the fact that an individual might be able to bring the validity of a Community measure before 19. As the Court of First Instance noted, 1 7 the national courts by violating the rules it according to settled case-law, Community lays down and then asserting their illegality law enshrines the right to an effective in subsequent judicial proceedings brought remedy before a court of competent jur- against him would not constitute an ade- isdiction, a right based on the constitutional quate means of obtaining judicial protec- traditions common to the Member States tion: individuals cannot be required to and on Articles 6 and 13 of the European breach the law in order to gain access to Convention on Human Rights, and re- justice. 19 affirmed by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000. 18

22. Secondly, the Court of First Instance 20. In order to determine whether an considered whether an action for damages applicant might indeed be deprived of the based on the non-contractual liability of the right to an effective remedy if unable to Community, as provided for in Article 235 EC and the second paragraph of Article 288 EC, would constitute an adequate alterna- 16 — Paragraphs 31 to 37 of the judgment. 17 — Paragraphs 41 and 42 of the judgment. 18 — OJ 2000 C 364, p. 1. 19 — Paragraph 45 of the judgment.

23. The Court of First Instance therefore '... does not, in a case such as the present, concluded that neither the procedure pro- provide a solution that satisfactorily pro- vided for in Article 234 EC nor that laid tects the interests of the individual affected. down by Article 235 and the second Such an action cannot result in the removal paragraph of Article 288 EC is sufficient from the Community legal order of a to guarantee to persons the right to an measure which is nevertheless necessarily effective remedy enabling them to contest held to be illegal. Given that it presupposes the legality of Community measures of that damage has been directly occasioned general application which directly affect by the application of the measure in issue, their legal situation. 21 such an action is subject to criteria of admissibility and substance which are different from those governing actions for annulment, and does not therefore place the Community judicature in a position whereby it can carry out the comprehensive 24. Whilst it accepted that such a circum- judicial review which it is its task to stance could not constitute authority for perform. In particular, where a measure of changing the system of judicial remedies general application, such as the provisions and procedures established by the Treaty, it contested in the present case, is challenged considered there to be no compelling reason in the context of such an action, the review to adopt the strict traditional interpretation carried out by the Community judicature of individual concern. 22 It therefore pro- does not cover all the factors which may posed instead a new interpretation whereby affect the legality of that measure, being a natural or legal person is to be regarded limited instead to the censuring of suffi- as individually concerned by a Community ciently serious infringements of rules of law measure of general application that con- intended to confer rights on individuals (see cerns him directly if the measure in question Case C-352/98 P Bergaderm and Goupil v 'affects his legal position, in a manner Commission [2000] ECR 1-5291, para- which is both definite and immediate, by graphs 41 to 43; Case T-155/99 Dieckmann restricting his rights or by imposing obliga- & Hansen v Commission [2001] ECR II- tions on him', regardless of the number and 3143, paragraphs 42 and 43; see also, as position of other persons who are or may regards an insufficiently serious infringe- be likewise affected. 23 ment, Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commis- sion [1992] ECR I-3061, paragraphs 18 and 19, and, for a case in which the rule 20 — Paragraph 46 of the judgment. invoked was not intended to confer rights 21 — Paragraph 47 of the judgment. 22 — Paragraphs 48 and 49 of the judgment. on individuals, paragraph 43 of the judg- 23 — Paragraph 51 of the judgment.

28. The Commission has appended to its appeal the judgment of the Court of First Instance together with the letter which accompanied it from the Registrar of the Court of First Instance. That letter bears a 26. In the present case, the Commission stamp indicating that the letter was received asks the Court of Justice to set aside the on 8 May 2002. The Commission's appeal judgment of the Court of First Instance and is dated 17 July 2002. to declare the action for annulment of the contested regulation inadmissible or, in the alternative, refer the matter back to the Court of First Instance. Jégo-Quéré asks the Court to declare the appeal inadmissible in so far as it was commenced out of time; or 29. It therefore appears both that the alternatively, to reject the appeal as Commission provided an indication in its unfounded and to confirm the judgment appeal of the date on which it was notified of the Court of First Instance. It also of the contested judgment and that it lodged advances its own cross-appeal, asking the its appeal within the time limit laid clown by Court to set aside the contested judgment in what was then Article 49 of the Statute of so far as it holds that Jégo-Quéré is not the Court read together with Articles 80 individually concerned within the meaning and 81 of the Court's Rules of Procedure. of the fourth paragraph of Article 230 as traditionally interpreted in the Community case-law.

30. Hence, I am of the view that the 24 — Paragraphs 52 and 53 of the judgment. Commission's appeal is admissible.

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32. The second plea advanced by the Commission alleges that the interpretation of individual concern adopted by the Court of First Instance in the present case is in breach of Community law. So wide is that interpretation, the Commission asserts, that it effectively suppresses the condition of 34. In response to the Commission's sec- individual concern altogether, and is there- ond plea, Jégo-Quéré asserts that, far from fore contrary to the express wording of the suppressing the requirement of individual fourth paragraph of Article 230 EC. More- concern, a broad and flexible interpretation over, in the Commission's view, the Court of that notion is both consistent with the of First Instance was mistaken to conclude fourth paragraph of Article 230 and neces- that the traditional interpretation of indivi- sary in order to guarantee the right of dual concern fails to guarantee the right to individuals to an effective judicial remedy. effective judicial protection. That right does not confer any general entitlement upon individuals to bring a direct action for 25 — Case C-188/92 [1994] ECR I-833.

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37. Jégo-Quéré also rejects the Commis- sion's argument that it could obtain a more appropriate remedy, given the short dura- tion of the contested measure, by bringing 39. That case arose out of an application an action for damages pursuant to Article brought by an association of farmers, the 235 and the second paragraph of Article Unión de Pequeños Agricultores ('UPA'), 288. Such an argument ignores the fact that pursuant to the fourth paragraph of Article the contested measure is merely one stage in 230, for the annulment of Regulation (EC) an ongoing process of reform to the No 1638/98 of 20 July 1998 amending the Common Fisheries Policy, involving the introduction of measures of longer or unlimited duration. As a consequence, 26 — Cited in note 5.

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42. Jégo-Quéré seeks to resist such a conclusion on the basis that in the present case, by contrast with Unión de Pequeños Agricultores, it is uncontested that Jégo- Quéré could bring its case before a national 40. Having heard the case in plenary court only by infringing the law. Jégo- session, the Court of Justice dismissed Quéré contends that such a possibility does UPA's appeal and upheld the traditional not adequately protect its right to an interpretation of individual concern as laid effective judicial remedy. It also identifies down in Plaumann. 29 Whilst accepting other grounds for distinguishing Unión de that the requirement of individual concern Pequeños Agricultores, which I shall dis- 'must be interpreted in the light of the cuss in the context of its cross-appeal. principle of effective judicial protection by taking account of the various circumstances that may distinguish an applicant individu- ally', the Court also stated that 'such an interpretation cannot have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts'. 30 43. As I explained in my Opinion in Unión de Pequeños Agricultores, I find highly problematic the strict test of standing currently applicable under the fourth para- 27 — OJ 1998 L 210, p. 32. graph of Article 230. In my view, that test 28 — Case T-173/98 Unión de Pequeños Agricultores (UPA) v gives rise to a real risk that individuals will Council [1999] ECR II-3357. 29 — At paragraphs 36 and 37 of the judgment. be denied any satisfactory means of challen- 30 — At paragraph 44 of the judgment. ging before a court of competent jurisdic-

44. Nor do Article 235 and the second paragraph of Article 288 appear to me to 46. Such an outcome is to my mind supply an adequate alternative remedy. As unsatisfactory, but is the unavoidable con- the Court of First Instance stated in the sequence of the limitations which the present case, an action for damages does current formulation of the fourth para- not allow the Community judicature to graph of Article 230 is considered by the perform a comprehensive judicial review of Court to impose. As the Court made clear all of the factors which may affect the in Unión de Pequeños Agricultores, 33 legality of a Community measure. For such necessary reforms to the Community sys- an action to proceed, it is necessary for the tem of judicial review are therefore depen- applicant to show a sufficiently serious dent upon action by the Member States to infringement of rules of law intended to amend that provision of the Treaty. In my confer rights on individuals. The Commis-

32 — Paragraph 44 of the judgment. 31 — Case 314/85 Foto-Frost [1987] ECR 4199, paragraph 20. 33 — At paragraph 45 of the judgment.

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The cross-appeal

51. Jégo-Quéré further points to two cir- cumstances, in particular, which in its view differentiate it from all other persons affected by the contested regulation, and thereby render it individually concerned 48. There remains the issue whether, as within the meaning of the fourth paragraph Jégo-Quéré contends, the Court of First of Article 230. Instance was wrong to hold that Jégo- Quéré lacked individual concern within the traditional interpretation of that concept. 34 — At paragraphs 23 and 24 of the contested judgment.

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COMMISSION v JÉGO-QUÉRÉ

52. First, Jégo-Quéré asserts that it is the the imposition upon it of the contested only operator which fishes for whiting in provisions. That solution, whereby inde- the Celtic Sea on a permanent basis with pendent observers would verify that Jégo- vessels exceeding 30 metres in length and Quéré's vessels did not catch hake, would which catches only negligible quantities of successfully have accomplished the objec- juvenile hake in the form of 'by-catch'. tive pursued by the regulation.

53. However, even if Jégo-Quéré were to 55. The representations which Jégo-Quéré demonstrate that it is currently the only made to the Commission prior to the operator meeting the criteria which it adoption of the regulation could only specifies, it would still be affected by the operate to differentiate it in accordance contested regulation by reason of a com- with the case-law relating to individual mercial activity which other operators, concern if there were a rule in the applicable fulfilling the same criteria, could potentially Community legislation which granted it undertake. 35 As the Court of First Instance some specific procedural guarantee. 37 As held, Jégo-Quéré was affected by the con- the Court of First Instance noted, such is tested regulation only 'in the same way as not the case here. 38 any other economic operator actually or potentially in the same situation'. 36

(1) set aside the judgment of the Court of First Instance;

(2) declare the action for annulment inadmissible;

(3) order Jégo-Quéré to bear the costs, including those incurred before the Court of First Instance.

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