Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)
18 November 2004 (1)

applicant,

v

defendant,

THE COURT (Sixth Chamber),

having regard to the written procedure

gives the following

Judgment

1. By its application, the Commission of the European Communities requests the Court to declare that:
- in not putting in place the criteria and detailed rules for the use of the fishing quota allocated to it,
- by failing to ensure compliance with Community rules on the conservation of aquatic marine living resources by the monitoring of fishing activities, appropriate inspection of landings and the recording of catches, inspections and other controls as required by the relevant Community regulations,
- by failing to prohibit provisionally fishing by vessels flying its flag or registered in its territory when the quotas allocated to it were deemed to be exhausted, and
- by failing to initiate administrative or criminal proceedings against the masters of vessels infringing the regulations, or against such other person as was responsible for such infringement,
Ireland has failed to carry out the obligations imposed on it by Article 9(2) of Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1) and by Articles 2, 21 and 31 of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 L 261, p. 1).

The legal framework
2. Article 9(2) of Regulation No 3760/92 provides:
-˜Member States shall inform the Commission each year of the criteria they have adopted for distribution and of the detailed rules for the use [of] the fishing availabilities allocated to them, in accordance with Community law and the common fisheries policy.-™
3. The eighth recital in the preamble to Regulation No 2847/93 states:
-˜-¦ policy on the management of fishery resources, which is based in particular on total allowable catches (TACs) and quotas and technical measures, is to be supplemented by management of the fishing effort, which involves monitoring fishing activities and capacities-™.
4. Article 2 of Regulation No 2847/93 provides as follows:
-˜1. In order to ensure compliance with all the rules in force concerning conservation and control measures, each Member State shall, within its territory and within maritime 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 fish and recording landings and sales.
-¦
3. Each Member State shall monitor, outside the Community fishery zone, the activities of its vessels in cases where such control is required to ensure compliance with Community rules applicable in those waters.-™
5. Article 15(1) of Regulation No 2847/93 provides as follows:
-˜Before the 15th of each month, each Member State shall notify the Commission by computer transmission of the quantities of each stock or group of stocks subject to TACs or quotas landed during the preceding month and shall provide it with any information received under Article[s] 11 and 12.-™
6. Article 21(1) and (2) of Regulation No 2847/93 is worded as follows:
-˜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.
2. Each Member State shall determine the date from which the catches of a stock or group of stocks subject to quota made by the fishing vessels flying its flag or registered 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 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 notified forthwith of this measure and shall then inform the other Member States.-™
7. Article 31(1) of Regulation No 2847/93 provides as follows:
-˜Member States shall ensure that the appropriate measures be taken, including -¦ administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where [the] common fisheries policy [has] not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.-™

Pre-litigation procedure and the application
8. On 2 February 1999, after establishing that the data in its possession indicated that the Irish quotas for certain fish stocks subject to quota had been exceeded, the Commission sent a letter of formal notice to Ireland, in accordance with the procedure set out by the EC Treaty in matters of failure to fulfil obligations, in which it called on that Member State to submit its observations within two months.
9. In its reply by letter of 6 April 1999, Ireland stated that the Commission-™s figures for fish catches contained substantive errors attributable to mistaken or incorrect recordings of landings by Irish vessels. It pointed out in this regard that it had experienced difficulties in monitoring the landings from Irish vessels in Norway.
10. As it was not satisfied with the reply provided by Ireland, the Commission addressed a reasoned opinion to Ireland on 12 March 2001 in which it called on that Member State to adopt the measures necessary for compliance with that opinion within two months of its notification.
11. As Ireland did not reply to that reasoned opinion, the Commission decided to bring the present action.
12. In its action, the Commission puts forward the following four heads of complaint against Ireland:
- breach of Article 9(2) of Regulation No 3760/92 in so far as Ireland failed to adopt its own criteria for guaranteeing such quota management as would prevent overfishing;
- breach of Article 2 of Regulation No 2847/93 in so far as Ireland failed to take effective measures to monitor the declarations of fishermen;
- breach of Article 21 of Regulation No 2847/93 in so far as Ireland failed to impose a provisional prohibition on fishing as soon as the allocated quotas had been exhausted;
- breach of Article 31 of Regulation No 2847/93 in so far as Ireland failed to bring criminal or administrative proceedings designed to sanction those responsible for overfishing.
13. The Commission relies on the first three heads of complaint in regard to the following stocks: cod in zones I and II (Norway), north of 62º North, for 1995 and 1996; haddock in zones VII to X for 1995; anglerfish in zone VII for 1996; Atlantic redfish in zones V, XII and XIV for 1996; and common sole in zone VIIa, also for 1996. The fourth head of complaint relates only to the cod stock in zones I and II (Norway), north of 62º North, for 1995.

Admissibility
Arguments of the parties
14. According to Ireland, the action is inadmissible for two reasons.
15. First, Ireland submits that its subject-matter has been extended in relation to that defined in the reasoned opinion, inasmuch as the Commission now alleges overfishing of mackerel, even though that species of fish was not covered by the reasoned opinion.
16. Second, Ireland claims that the action fails to respect the audi alteram partem principle as the Commission does not take account of the special nature of the different regimes for the management and monitoring of each of the species in question and fails to substantiate its allegations by way of any probative documentation, thus depriving Ireland of the possibility of determining whether the tonnages for the overfishing of which it stands accused are in fact accurate.
17. With regard to the first objection to admissibility raised by Ireland, the Commission acknowledges that it mistakenly included in its action a complaint relating to the mackerel stock. So far as the second objection to admissibility is concerned, the Commission submits that it complied with the procedure laid down in Article 226 EC and that it set out, in both the formal notice and the reasoned opinion, the matters on which it intended to base itself in alleging the failures to fulfil obligations.
Findings of the Court
18. The present action must be declared admissible.
19. First, the objection to admissibility based on the fact that the subject-matter of the action is broader than that of the reasoned opinion now serves no purpose as the Commission acknowledged in its reply that it was wrong to have included in its action a head of complaint relating to the mackerel stock.
20. Second, with regard to an alleged infringement of the audi alteram partem principle, suffice it to hold that Ireland does not dispute that the Commission correctly set out all of its heads of complaint in the formal notice and in the reasoned opinion, in accordance with the provisions of Article 226 EC. That being so, the second ground of inadmissibility relied on by Ireland must also be rejected.

Substance
21. It is appropriate at the outset to examine the three arguments by which Ireland challenges in general the action brought by the Commission.
22. First, Ireland argues that, if the corrections to the data transmitted to the Commission are taken into account, the percentages by which the quotas were exceeded are very insignificant (3.27% for the haddock stock and 0.41% for the anglerfish stock) or even zero, so far as the common sole stock is concerned.
23. Second, Ireland submits that, if the recordings by the Irish authorities concerning catches contained substantive errors, it was up to the Commission to correct them on the basis of its own information, and in particular by relying on the declarations as to landings in the other Member States, or on the basis of the information forwarded to it in the context of the pre-litigation procedure.
24. Third, Ireland contends that it faces difficulties in monitoring landings of catches which are, in very large measure, made in foreign ports, in particular in Norway.
25. It must be held that, even if one were to assume that the corrections applied by Ireland are based on persuasive factors and may still be added to the data which Ireland has supplied to the Commission, which would have the effect of further minimising the degree to which the quotas were allegedly exceeded, the fact none the less remains that the quotas for the haddock and anglerfish stocks were exceeded. According to settled case-law, a Member State is guilty of a failure to fulfil its Treaty obligations regardless of the frequency or the extent of the subject of the complaint (see, inter alia, Case C-'105/91 Commission v Greece [1992] ECR I-'5871, paragraph 20).
26. In any event, the Commission is not obliged to take account of new figures which were sent to it only after the expiry of the period laid down in Article 15(1) of Regulation No 2847/93 (Joined Cases C-'418/00 and C-'419/00 Commission v France [2002] ECR I-'3969, paragraph 55). Nor can the Court take into account arguments, such as those which have been invoked before it by Ireland, which merely suggest, as being potentially correct, data differing from those which the Member State in question provided pursuant to that provision.
27. That interpretation follows from the declaratory nature of the scheme established by Regulation No 2847/93 to ensure the proper functioning of the Community system of catch quotas, which depends in essence on the effectiveness of the monitoring of landings and the reliability of the information gathered by the Member States, which is also an indispensable condition for ensuring that the Commission can carry out its supervisory responsibilities (see Case C-'454/99 Commission v United Kingdom [2002] ECR I-'10323, paragraph 46). Moreover, the Commission does not have the means required to assess the accuracy of all data provided by Member States.
28. The first two objections raised by Ireland cannot for those reasons be upheld.
29. So far as the third objection of Ireland is concerned, it is settled case-law that a Member State cannot rely on practical difficulties in order to justify its failure to adopt appropriate control measures and thus avoid its obligations under Community law (see, inter alia, Case C-'52/95 Commission v France [1995] ECR I-'4443, paragraph 28). Under Article 2(3) of Regulation No 2847/93, each Member State is required to monitor, outside the Community fishery zone, the activities of its vessels in cases where such controls are required to ensure compliance with Community rules applicable within that zone.
30. It follows that the three arguments relied upon by Ireland for the purpose of contesting in general the action brought by the Commission must be rejected.
The first head of complaint: breach of Article 9(2) of Regulation No 3760/92
31. The Commission submits that Ireland has not put in place appropriate detailed rules for the proper utilisation of the quotas allocated to it. In its view, criteria ought to have been established in such a way as to enable that Member State to ensure that overfishing would not take place and that its quotas would be respected.
32. In reply, Ireland contends that the Commission has based itself upon mere presumptions and has failed to adduce specific evidence in support of its allegations in so far as these relate to haddock, anglerfish, Atlantic redfish or common sole.
33. It should be pointed out in this regard that, under Article 9(2) of Regulation No 3760/92, Member States are required to inform the Commission of the detailed rules for the use of the fishing allocations allotted to them and of the criteria adopted for their distribution.
34. It follows from Article 9(2) of Regulation No 3760/92 that Member States are required, first, to adopt criteria for distribution of the fishing allocations allotted to them and detailed rules for their use and, second, to inform the Commission that they have adopted those criteria.
35. The Commission submits, without being contradicted by Ireland on this point, that Ireland did not inform it of the management criteria which it had adopted in 1995 and 1996 for the stocks in question.
36. In those circumstances, Ireland must be regarded as having failed to establish either the detailed rules for the use of the fishing quotas allocated to it or the criteria necessary for that purpose. That Member State has consequently failed to fulfil its obligations under Article 9(2) of Regulation No 3760/92.
The second head of complaint: breach of Article 2 of Regulation No 2847/93
37. The Commission contends that, in order to be effective, the measures taken pursuant to Article 2 of Regulation No 2847/93 should have ensured that fishermen would report all catches made to the competent authorities. Ireland, it continues, should also have established a system permitting that catch information to be analysed rapidly, so that decisions to impose a provisional ban on fishing for a given stock could be taken in time to prevent the quota from being exceeded.
38. The Commission, referring to paragraph 31 of the judgment in Commission v United Kingdom, cited above, submits in this regard that, for each instance of overfishing, it is not under an obligation to demonstrate that the management and control measures were inadequate. The Court, according to the Commission, accepted that the overfishing was itself the sign of such inadequacy.
39. Ireland repeats its argument that the Commission relied upon mere assumptions and did not provide any specific evidence in support of its assertions in so far as those relate to haddock, anglerfish, Atlantic redfish or common sole. Ireland also takes the view that the above judgment in Commission v United Kingdom is not relevant in the context of the present case inasmuch as the overfishing alleged against the United Kingdom in the dispute which led to that judgment amounted to approximately 29 000 tonnes, whereas that in the present case, according to the Commission, amounts to merely 1 262 tonnes.
40. By contrast, Ireland relies on paragraphs 36 and 37 of the judgment in Case C-'62/89 Commission v France [1990] ECR I-925, according to which the Commission had not proved the existence of the alleged failure which, in its view, resulted from infringement of relevant provisions governing the obligations devolving on Member States to monitor fishing quotas.
41. It must be stated in this regard, first, that it is clear from the eighth recital in the preamble to Regulation No 2847/93 that the proper functioning of the Community system of total allowable catches (TACs) and fishing quotas depends in essence on the effectiveness of the monitoring of landings and the reliability of the information gathered by the Member States, which is also an indispensable condition for ensuring that the Commission can carry out its supervisory responsibilities (see, by way of analogy, Commission v United Kingdom, paragraph 46).
42. In that context, under Article 2(1) and (3) of Regulation No 2847/93, each Member State is required to monitor, within its territory and within maritime waters subject to its sovereignty or jurisdiction, fishing and related activities, including the activities of landing fish, thereby allowing implementation of the regulation to be verified. Each Member State must also monitor, outside the Community fishery zone, the activities of its vessels in cases where such control is required in order to ensure compliance with Community rules applicable within that zone.
43. In order for the objectives of Regulation No 2847/93 to be fully attained, Article 2(1) and (3) thereof must be construed as meaning that the monitoring of the activities of landing of fish by Member States must be complete and precise (see, by way of analogy, Commission v United Kingdom, paragraph 48).
44. In the present case, the Commission has established that the monitoring carried out by the Irish authorities did not satisfy those conditions. It is clear from the data which Ireland forwarded to the Commission pursuant to Article 15(1) of Regulation No 2847/93 that quotas were exceeded in regard to cod in zones I and II (Norway), north of 62º North, for 1995 and 1996, haddock in zones VII to X for 1995, anglerfish in zone VII for 1996, Atlantic redfish in zones V, XII and XIV for 1996, and common sole in zone VIIa, also for 1996.
45. It must therefore be held that, by failing to ensure compliance with Community rules on the conservation of aquatic marine living resources through the monitoring of fishing activities, appropriate inspection of landings and the recording of catches, inspections and other controls as required by the relevant Community regulations, Ireland has failed to fulfil its obligations under Article 2 of Regulation No 2847/93.
The third head of complaint: breach of Article 21 of Regulation No 2847/93
46. The Commission submits that, according to the Court-™s case-law, it follows from Article 21 of Regulation No 2847/93 that Member States are required to adopt in good time all the measures necessary to ensure that the quotas allocated to them are not exceeded and are complied with for the purpose of conserving fishery resources, including, where appropriate, the obligation to adopt binding measures to prohibit provisionally all fishing activity even before quotas are exhausted (Case C-'62/89 Commission v France, cited above, paragraphs 17 and 18, and Case C-'244/89 Commission v France [1991] ECR I-'163, paragraph 17). In the present case, the Commission has established that, although they were informed that the quotas had been exhausted, the Irish authorities did not adopt any measure to close fishing or, alternatively, in regard to cod in zones I and II (Norway), north of 62º North, for 1995, adopted such a measure only after a delay.
47. Ireland acknowledges that it breached Article 21(2) of Regulation No 2847/93 in regard to cod in zones I and II (Norway), north of 62º North, for 1995, in so far as the decision to close fishing was adopted after a delay.
48. Article 21(1) of Regulation No 2847/93 provides that all catches of a stock subject to quota must be charged against the quota applicable to the flag Member State, irrespective of the place of landing.
49. It must also be stated that, under Article 21(2) of Regulation No 2847/93, each Member State is required to determine the date from which the catches of a stock subject to quota are to be deemed to have exhausted the applicable quota and to prohibit provisionally from that date fishing for that stock. As the Commission has correctly pointed out, it follows from that provision that Member States are required to adopt in good time all the measures necessary to ensure that the relevant quotas are not exceeded in order to guarantee compliance with the quotas allocated to the Member States for the purpose of conserving fishery resources (Case C-'62/89 Commission v France, paragraphs 17 and 18, and Case C-'244/89 Commission v France, cited above, paragraph 17).
50. It is clear from the data which Ireland notified to the Commission pursuant to Article 15(1) of Regulation No 2847/93 that quotas were in particular exhausted with regard to cod in zones I and II (Norway), north of 62º North, for 1996, haddock in zones VII to X for 1995, anglerfish in zone VII for 1996, Atlantic redfish in zones V, XII and XIV for 1996, and common sole in zone VIIa, also for 1996.
51. As the Commission has submitted, without being challenged by Ireland on this point, the Irish authorities, did not, even though the quotas had been exhausted, adopt any measure to close fishing or, in the case of cod in the abovementioned zones, adopted such a measure only after a delay.
52. It must accordingly be held that, by not imposing a provisional prohibition on fishing by vessels flying its flag or registered within its territory when the quotas allocated to it were deemed to have been exhausted, Ireland has failed to fulfil its obligations under Article 21(1) and (2) of Regulation No 2847/93.
The fourth plea in law: breach of Article 31 of Regulation No 2847/93
53. The Commission contends that, in the case of cod in zones I and II (Norway), north of 62º North, for 1995, catches continued to be recorded after fishing had been closed. Ireland, it submits, did not institute any criminal or administrative proceedings against the masters of vessels who breached obligations under the Community fisheries rules.
54. Ireland acknowledges that no administrative action or criminal proceedings were instituted against the masters of two Irish vessels which overfished in Norwegian waters.
55. Member States are required under Article 31(1) of Regulation No 2847/93 to ensure that the appropriate measures are taken, including administrative action or criminal proceedings, against those persons who have failed to comply with the rules of the common fisheries policy.
56. It must accordingly be held that, by not taking administrative action or bringing criminal proceedings against the masters of vessels who breached the applicable regulations or against any person responsible for such a breach, Ireland has failed to fulfil its obligations under Article 31 of Regulation No 2847/93.

Costs
57. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the other party-™s pleadings. As the Commission has asked that Ireland be ordered to pay the costs, and as the latter has been unsuccessful in its submissions, Ireland must be ordered to pay the costs.




On those grounds, the Court (Sixth Chamber) hereby:

1. Declares that:

- by not putting in place the criteria and detailed rules for the use of the fishing quota allocated to it;

- by failing to ensure compliance with Community rules on the conservation of aquatic marine living resources by the monitoring of fishing activities, appropriate inspection of landings and the recording of catches, inspections and other controls as required by the relevant Community regulations;

- by failing to prohibit provisionally fishing by vessels flying its flag or registered within its territory when the quotas allocated to it were deemed to have been exhausted; and

- by failing to initiate administrative or criminal proceedings against the masters of vessels who infringed the applicable regulations or against any person responsible for such an infringement,

Ireland has failed to fulfil its obligations under Article 9(2) of Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture and under Articles 2, 21 and 31 of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy;

2. Orders Ireland to pay the costs.


Signatures.

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1 - Language of the case: English.