JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
27 February 2013 (*)
(Fisheries – Conservation of fish stocks – Recovery plan for bluefin tuna – Measures prohibiting fishing activities of purse seiners flying the flag of France or Greece – Actions for annulment – Regulatory act not entailing implementing measures – Whether directly concerned – Admissibility – Rate of exhaustion of quotas per State and per purse seiner – True catch capacity)
In Case T‑367/10,
Bloufin Touna Ellas Naftiki Etaireia, established in Athens (Greece),
Chrisderic, established in Saint-Cyprien (France),
André Sébastien Fortassier, residing in Grau-d’Agde (France),
represented initially by V. Akritidis and E. Petritsi, lawyers, and subsequently by V. Akritidis and F. Crespo, lawyers,
applicants,
v
European Commission, represented by K. Banks, A. Bouquet and D. Nardi, acting as Agents,
defendant,
ACTION for annulment of Commission Regulation (EU) No 498/2010 of 9 June 2010 prohibiting fishing activities for purse seiners flying the flag of France or Greece or registered in France or Greece, fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea (OJ 2010 L 142, p. 1),
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas (Rapporteur) and K. O’Higgins, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 14 November 2012,
gives the following
Judgment
Background to the dispute
1 The applicants, Bloufin Touna Ellas Naftiki Etaireia (‘the Greek applicant’), Chrisderic and Mr André Sébastien Fortassier (‘the French applicants’), are owners of purse seiners named AIGAION, flying the Greek flag, CHRISDERIC II and VILLE D’AGDE IV, both flying the French flag, which are authorised to fish for bluefin tuna. As a result of the quotas allocated to European Union Member States by Council Regulation (EU) No 53/2010 of 14 January 2010 fixing for 2010 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in EU waters and, for EU vessels, in waters where catch limitations are required and amending Regulations (EC) No 1359/2008, (EC) No 754/2009, (EC) No 1226/2009 and (EC) No 1287/2009 (OJ 2010 L 21, p. 1), the Greek and French authorities allocated quotas for 2010 to the Greek applicant and the French applicants respectively.
2 On 15 April 2010, the applicants filed an application for authorisation of a joint fishing operation (‘JFO’), in accordance with Article 19 of Council Regulation (EC) No 302/2009 of 6 April 2009 concerning a multiannual recovery plan for bluefin tuna in the eastern Atlantic and Mediterranean, amending Regulation (EC) No 43/2009 and repealing Regulation (EC) No 1559/2007 (OJ 2009 L 96, p. 1). That JFO concerned the fishing of live bluefin tuna by the vessels AIGAION, CHRISDERIC II and VILLE D’AGDE IV and covered the regulated fishing period of 16 May to 14 June 2010.
3 On 21 and 30 April 2010, the French and Greek authorities sent their respective JFO applications to the European Commission. On 12 May 2010, after the Hellenic Republic had amended its annual fishing plan because of the revision of AIGAION’s individual quota, the Commission notified the International Commission for the Conservation of Atlantic Tunas (‘the ICCAT’) of the five JFO’s for which applications had been submitted to it by Member States, including the applicants’ JFO.
4 By letter of 19 May 2010, the Greek authorities informed the Greek applicant that fishing activities could start on 23 May.
5 By application of Article 36(2) of Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009 L 343, p. 1), on 9 June 2010, the Commission adopted Commission Regulation (EU) No 498/2010 of 9 June 2010 prohibiting fishing activities for purse seiners flying the flag of France or Greece or registered in France or Greece, fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea (OJ 2010 L 142, p. 1; ‘the contested regulation’).
6 Article 1 of that regulation states as follows:
‘Fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and the Mediterranean by purse seiners flying the flag of or registered in France or Greece shall be prohibited as from 10 June 2010, 00h00.’
7 Furthermore, on 14 June 2010, the Commission, pursuant to Article 36(2) of Regulation No 1224/2009, adopted Regulation (EU) No 508/2010 prohibiting fishing activities for purse seiners flying the flag of or registered in Spain, fishing for bluefin tuna in the Atlantic ocean, east of longitude of 45° W, and in the Mediterranean sea (OJ 2010 L 149, p. 7).
8 Pursuant to Article 2 of that regulation:
‘Fishing activities for the stock referred to in the Annex to this Regulation by purse seiners flying the flag of or registered in the Member State referred to therein shall be prohibited from the date set out in that Annex.’
9 The Annex to that regulation refers to 10 June 2010 as the date from which purse seine fishing for bluefin tuna by purse seiners flying the flag of or registered in Spain was also prohibited.
Procedure and forms of order sought by the parties
10 By application lodged at the Court Registry on 3 September 2010, the applicants brought the present action.
11 By way of measures of organisation of procedure, the Court sent a number of written questions to the Commission, which replied within the period allowed.
12 The parties presented oral argument and replied to the questions put by the Court at the hearing on 14 November 2012.
13 The applicants claim that the Court should:
– annul the contested regulation;
– order the Commission to pay the costs.
14 The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
Admissibility
15 The Commission, without formally raising an objection as to admissibility, is of the opinion that, since the French Republic has transferred unused French purse seiner quotas to other segments of its fleet, it is doubtful whether the French applicants still have an interest in the annulment of the contested regulation.
16 The applicants claim that the contested regulation had a significant negative impact on them, which proves their direct and individual concern and standing to bring these proceedings before the Court. Contrary to the Commission’s claims in that regard, the fact that the French Republic revised its fishing plan and exhausted its national quota does not have any bearing on the French applicants’ interest in the annulment of the contested regulation.
17 First of all, it must be borne in mind that, in accordance with the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
18 In the present case, the contested regulation is a regulatory act adopted by the Commission on the basis of Article 36(2) of Regulation No 1224/2009, the provisions of which prohibit fishing activities for purse seiners flying the flag of France or Greece or registered in France or Greece, fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea, with effect from 10 June 2010 at 00:00 hours.
19 It is therefore indisputable that the provisions of the contested regulation are addressed in abstract terms to an indeterminate number of persons and apply to objectively determined situations (see, to that effect, Case C-213/91 Abertal and Others v Commission [1993] ECR I‑3177, paragraph 19, and the order of the Court of First Instance in Case T-183/94 Cantina cooperativa fra produttori vitivinicoli di Torre di Mosto and Others v Commission [1995] ECR II-1941, paragraph 51).
20 In addition, since the applicants’ activity is in fact fishing for bluefin tuna using purse seiners, the AIGAION, flying the flag of Greece and, the CHRISDERIC II and the VILLE D’AGDE IV, flying that of France, they are directly concerned by the contested regulation.
21 Finally, the stopping of the fishing, which follows from the contested regulation, does not require any implementing measure on the part of the Member States.
22 It follows that the contested regulation is a regulatory act which does not entail implementing measures and which directly concerns the applicants, within the meaning of the fourth paragraph of Article 263 TFEU. Those considerations are not, moreover, disputed by the parties.
23 The Commission’s arguments calling into question whether the French applicants still have an interest in the annulment of the contested regulation must therefore be rejected.
24 It suffices to note that, on the date that fishing for bluefin tuna was closed by that regulation, the French applicants had not used up the quota initially allocated to them. The quota initially allocated to each French purse seiner was 51 tonnes and, when the fishing was closed, those applicants had each caught 31.5 tonnes. Consequently, at that date they had used only 61.7% of their quota.
25 Furthermore, the Commission’s pleadings show that, despite a transfer of 168 tonnes of unused quota to other fleet segments, the French purse seiners did not use up the total of the quotas allocated to them.
26 Thus, it must be held that the French purse seiners were not able to use their total quota because the contested regulation prohibited fishing for bluefin tuna with effect from 10 June 2010.
27 It follows that, because of that prohibition, the quota initially allocated to the French applicants was substantially reduced. Accordingly, contrary to the Commission’s submissions, the French applicants’ standing to bring the action still exists.
28 Finally, with regard to the Greek applicant’s standing to bring the action, it suffices to say, as is apparent from paragraphs 34 and 42 below, that it is in a position identical to that of the French applicants, namely that it was unable to use the entirety of the quota allocated to it. Furthermore, the Commission has not challenged the Greek applicant’s standing to bring the action.
29 The action is therefore admissible.
Substance
30 In support of their action, the applicants rely on three pleas in law, alleging, firstly, infringement of the principles of equal treatment and non-discrimination, secondly, infringement of the principle of proportionality and thirdly, infringement of the principle of sound administration and the duty of care.
The first plea in law, alleging infringement of the principles of equal treatment and non-discrimination
31 The applicants claim that the Commission carried out a discrimination on two grounds. Firstly, it prohibited fishing operations for purse seiners flying the flag of Greece, Spain or France or registered in those Member States (‘the Greek, Spanish and French seiners’) on the same date, before the end of the fishing period, whereas in fact the level of exhaustion of the Greek quota was much lower than that of the Spanish quota. Secondly, although it informed the three Member States of the suspension of those fishing operations, the Commission published two different binding termination regulations, namely the contested regulation concerning Greek and French seiners and Regulation No 508/2010 concerning Spanish seiners. The latter regulation authorised, in practice, the Spanish fleet to fish until the end of the original fishing period, namely 14 June 2010, which amounted to discrimination on the grounds of nationality.
– The first part of the first plea in law, concerning the discrimination resulting from the stopping of fishing activities on the same date for Greek, Spanish and French seiners
32 Respect for the principle of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Case C‑221/09 AJD Tuna [2011] ECR I‑1655, paragraph 88 and the case-law cited).
33 The Court must examine whether the Commission, by deciding to stop fishing activities early, on the same date, for the Greek, Spanish and French seiners, was guilty of discrimination within the meaning of the case-law cited in the preceding paragraph.
34 On 9 June 2010, the Commission sent three faxes to the administrations of the Member States concerned stating that, as at 8 June 2010, the Greek, Spanish and French seiners had used 61.7%, 90.5% and 85.7% respectively of their quota and that, accordingly, the catch capacity of those vessels was deemed to have been exhausted on 9 June 2010.
35 Although a clear difference between the percentage use of the quotas by the Spanish seiners and the Greek seiner can be seen from those percentages, it is clear that the Spanish seiners were able to fish more bluefin tuna than the French seiners, those percentages give only an imperfect view of the true situation. The Commission, in order to decide on stopping fishing operations, took account of the risk that the Member States would exceed the quota allocated to them, to wit 60 tonnes to the Hellenic Republic, 803.9 tonnes to the Kingdom of Spain and 1 699 tonnes to the French Republic for bluefin tuna fishing using purse seiners.
36 On 8 June 2010, then, the Hellenic Republic, the Kingdom of Spain and the French Republic still had remaining quotas of 23 tonnes, 76.1 tonnes and 243 tonnes respectively for fishing bluefin tuna using purse seiners. The Greek fleet comprises only one purse seiner, namely the AIGAION, the Greek applicant’s vessel, whereas the Spanish and French fleets have to share the quota allocated to their Member States of origin between 6 and 16 purse seiners respectively.
37 According to the data received by the Commission, which is not disputed by the parties, the AIGAION caught 37 tonnes of bluefin tuna in a single day, 6 June 2010, and the French applicants each caught 31.5 tonnes on the same day. In their JFO, therefore, the applicants had caught 100 tonnes of bluefin tuna. On 6 June 2010, the Spanish fleet had caught 597 tonnes of bluefin tuna and the French fleet as a whole had caught 1 107 tonnes.
38 The Commission determined the probable date of exhaustion of the quotas, on the basis of those data and the catch capacity of purse seiners and on the average catch rates of the European Union purse seiner fleet, as noted during the 2007, 2008 and 2009 fishing seasons, as 9 June 2010 for the Greek, Spanish and French seiners.
39 In that regard, even if the rate of exhaustion of the Greek, Spanish and French quotas was not the same, it follows from the data supplied by the Commission and the calculations made by it that there was a risk that the purse seiners would exceed the quota allocated to them, particularly as the remaining quotas, to wit 23 tonnes for the Greek seiner, 12.7 tonnes for each Spanish seiner and 19.5 tonnes for each of the French applicants, as a theoretic average, were relatively low.
40 Furthermore, it must be accepted that, if the applicants were able to catch 100 tonnes in one day, it is likely that they would have been able to fish the remaining quota, namely 62 tonnes, in one day. The same reasoning applies to the catch capacities of the Spanish fleet or the French fleet, looked at as a whole.
41 Thus, the Commission did indeed take as its basis the actual capacity of the Greek, Spanish and French seiners to catch bluefin tuna rather than their theoretical capacity to reach their catch quota for its decision to close fishing operations (see, to that effect, AJD Tuna, paragraph 102).
42 In addition, it used a method of calculation based on objective criteria, namely the analysis of the data available on 6 June 2010 and that of the data of the 2007, 2008 and 2009 fishing seasons. That method was applied in the same way to the Greek, Spanish and French seiners in order to determine the date on which their quota would be exhausted.
43 Having regard to the foregoing considerations, the first part of the applicants’ first plea in law, alleging that the Commission was guilty of discrimination by stopping fishing for bluefin tuna on the same date for the Greek, Spanish and French seiners, must be rejected.
– The second part of the first plea in law, alleging discrimination as a result of the adoption of the contested regulation and of Regulation No 508/2010 on different dates
44 It must be ascertained, in accordance with the case-law referred to in paragraph 32 above, whether, in adopting the contested regulation and Regulation No 508/2010, the Commission is guilty of discrimination by permitting the Spanish seiners to fish for longer than the applicants.
45 The contested regulation was adopted on 9 June 2010 and was published in the Official Journal of the European Union on 10 June 2010, while Regulation No 508/2010 was adopted on 14 June 2010 and was published in the Official Journal on 15 June 2010. Under Article 1 of the contested regulation, fishing for bluefin tuna by purse seiners ‘flying the flag of France or Greece or registered in France or Greece’ is prohibited with effect from 10 June 2010. Pursuant to the annex to Regulation No 508/2010, fishing for bluefin tuna by Spanish purse seiners is also prohibited from 10 June 2010.
46 First of all, the applicants’ arguments, set out in the reply, that there are contradictions between the date on which the Spanish quota was deemed to be exhausted and the date on which fishing for bluefin tuna was actually stopped in Regulation No 508/2010, must be rejected.
47 The Commission has stated that the date of exhaustion of the quotas, whether for the Greek, Spanish or French seiners, was deemed to be 9 June 2010. Consequently, in the contested regulation, the Commission fixed 10 June 2010 at 00:00 as the date on which fishing for bluefin tuna was prohibited for the Greek and French seiners. In Regulation No 508/2010, the date of the prohibition is also 10 June 2010. The exact time at which the prohibition on fishing was to take effect is indeed not stated therein. However, it must be borne in mind that, in accordance with Article 4(2) of Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (OJ English special edition: Series I Chapter 1971(II) P. 354 – 355), the taking effect of an act of the Commission fixed at a given date is to occur at the beginning of the first hour of the day falling on that date. Consequently, as is the case of the contested regulation, the prohibition of fishing of bluefin tuna by Spanish seiners was fixed by Regulation No 508/2010 on 10 June 2010 at 00:00.
48 Next, the applicants submit that they were subject to discrimination on the ground that Regulation No 508/2010, which was adopted after the contested regulation, permitted the Spanish seiners, in practice, to fish for a longer period than them.
49 Firstly, it must be noted that, as the Commission submits, notwithstanding the fact that Regulation No 508/2010 was adopted only on 14 June 2010, the Spanish authorities decided to stop fishing operations for bluefin tuna on 8 and 9 June 2010 and, consequently, the Spanish seiners did not, in practice, fish for a longer period than the applicants.
50 In that regard, reference should be made to the faxes of 8 and 9 June 2010 sent by the Spanish authorities to the Commission, informing it that fishing for bluefin tuna using purse seiners would cease for four of their vessels on 8 June 2010 at 17:00 and for their other two vessels on 9 June 2010 at 09:00.
51 It follows that, contrary to the applicants’ assertions, the Spanish seiners did not have the benefit of additional fishing days but, on the contrary, ceased fishing a day earlier than the Greek and French seiners since, according to the information supplied by the Spanish authorities, the last seiner ceased fishing operations on 9 June 2010.
52 In support of their argument that the Spanish seiners fished for a longer period than them, the applicants refer to the case of a Spanish vessel, the NUEVO ELORZ, which, according to the ICCAT catch records, fished 10 341 kg of bluefin tuna on 10 June 2010. However, as is apparent from the rejoinder and the responses of the Commission to the questions put by the Court, that date is an error by the ICCAT, since the real date on which the NUEVO ELORZ fished the 10 341 kg of bluefin tuna in question was 5 June 2010 and not 10 June 2010.
53 Consequently, contrary to the applicants’ submissions, that Spanish seiner did not fish beyond 10 June 2010. In addition, it must be noted that the applicants have adduced no evidence to show that other Spanish seiners actually fished beyond that date.
54 Secondly, it must be noted that Regulation No 508/2010 merely provided confirmation of the fact that fishing for bluefin tuna by the Spanish seiners had stopped, as decided by the Spanish authorities.
55 The Commission, in its defence, states that it informed all Member States, by fax of 11 June 2010, that Spain had decided independently to stop the fishing for bluefin tuna by seiners.
56 The applicants argue that that fax does not inform the Member States of the independent closing of fishing for bluefin tuna by the Spanish seiners, but rather of the prohibition of fishing by the Commission addressed to the Kingdom of Spain. Moreover, they point to the contradictory conduct of the Commission in adopting Regulation No 508/2010, when it has stated that it was not necessary to publish such a regulation because Spain had already voluntarily proceeded to stop fishing by its purse seiner fleet.
57 However, even if the applicants’ arguments were founded, that would not affect the present case. The applicants’ arguments seek, in essence, to challenge the lawfulness of Regulation No 508/2010 to benefit from any unlawfulness established, in order to seek the annulment of the contested regulation on the basis of infringement of the principle of non-discrimination.
58 Even if Regulation No 508/2010 were to contain inconsistencies, since it was adopted after the contested regulation it has no effect on the lawfulness of that contested regulation.
59 It follows from all the foregoing that no Greek, Spanish or French seiner was authorised to fish or actually fished on 10 June 2010.
60 Consequently, although the Commission adopted the contested regulation and Regulation No 508/2010 on different dates, that has not in practice caused any discrimination between Greek, Spanish and French seiners.
61 In the light of all the foregoing, the first plea must be dismissed.
The second plea in law, alleging infringement of the principle of proportionality
62 The applicants submit that the Commission could have adopted more proportionate measures to ensure compliance by Member States with the system introduced by Regulation No 1224/2009. The Commission applied a disproportionate prohibition at a time when the level of exhaustion of the different national quotas, in particular that of the Greek seiner, was much lower that that of the Spanish seiners, and where there was no real risk of exceeding those quotas, given their low levels of use.
63 In that regard, the principle of proportionality, which is one of the general principles of European Union law, requires that measures implemented by provisions of European Union law are appropriate for attaining the objective pursued and do not go beyond what is necessary to achieve it (AJD Tuna, paragraph 79 and the case-law cited).
64 According to settled case-law, the European Union legislature enjoys a wide discretionary power in matters concerning agriculture, including fisheries, corresponding to the political responsibilities given to it by Articles 40 TFEU to 43 TFEU. Consequently, judicial review by the Court must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion (AJD Tuna, paragraph 80 and the case-law cited).
65 As regards judicial review of the implementation of that principle, bearing in mind the wide discretion enjoyed by the European Union legislature where the common agricultural policy, including fisheries, is concerned, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue (AJD Tuna, paragraph 81 and the case-law cited).
66 It is therefore necessary for the Court to determine whether the prohibition on fishing bluefin tuna with effect from 10 June 2010 by purse seiners was not manifestly inappropriate (see, by analogy, AJD Tuna, paragraph 82).
67 In that regard, the applicants’ arguments concerning the risk of exhaustion of their quota are similar to those put forward under the first plea in law alleging, in particular, that the Commission acted in a discriminatory manner by deciding to stop the fishing from 10 June 2010.
68 As has been established in the examination of the first plea in law, the Commission decided to stop the fishing for bluefin tuna from 10 June 2010 since, having regard to the data relating to catches already made by the purse seiners and the average catch rates of the European Union purse seiner fleet observed during the 2007, 2008 and 2009 fishing seasons, there was a real risk that the European Union vessels would exceed their quota.
69 The applicants also claim that there are a number of measures which make it possible effectively to avoid exceeding quotas, firstly, the presence of an ICCAT observer on each purse seiner; secondly, the fact that catches are live catches and even if the quota has been exceeded, extra catches can be thrown back to the waters in real time; and thirdly, the fact that the applicants were in a joint fishing operation, fully monitored by the ICCAT observer and the Commission itself. At the hearing, the applicants also referred to the 2011 and 2012 fishing seasons, during which the seiners fished 100% of their quota, without, however, exceeding it, to demonstrate that those different measures are actually effective and are sufficient to avoid any risk of exceeding quotas.
70 With regard to the arguments relating to the 2011 and 2012 fishing seasons, even if founded they cannot be taken into consideration in the context of the present action. In accordance with settled case-law, the lawfulness of an act liable to be subject to an action for annulment under Article 263 TFEU must be assessed in the light of the facts and information available to the competent authority at the time of adoption of that act (see judgment of 22 May 2012 in Case T‑345/10 Portugal v Commission, not published in the ECR, paragraph 86 and the case-law cited).
71 As regards the applicants’ arguments as to the allegedly disproportionate nature of the measures prohibiting fishing for bluefin tuna adopted by the Commission, the Court of Justice, in paragraph 83 of the judgment in AJD Tuna, stated that measures prohibiting fishing adopted by the Commission on the ground that exhaustion of the quotas was imminent were not manifestly inappropriate. That assessment must be applied to the present case, since the Commission, by virtue of the precautionary principle, implemented measures which seemed to it the most appropriate in order to avoid any risk of the quotas being exceeded.
72 Furthermore, although it cannot be excluded that the measures referred to by the applicants could reduce the risk of the quotas being exceeded, the fact remains that, as the Commission points out in the defence, those measures are not infallible, whereas stopping the fishing is the most reliable method of preventing the quotas from being exceeded.
73 In the light of all the foregoing, the second plea in law must be dismissed.
The third plea in law, alleging infringement of the principle of sound administration and the duty of care
74 Firstly, the applicants consider that the contested regulation infringes the duty of care and the principle of sound administration because the risk of exhaustion of the quotas is linked to the activities of Spanish fishermen, who benefit from the highest quota in the European Union, and not to those of the Greek and French applicant fishermen.
75 In that regard, it must be pointed out that, irrespective of the fact that that argument is not at all clear, it must be placed, as the Commission has noted, without being contradicted by the applicants, under the first part of the first plea in law in the present case, which has been rejected (see paragraph 43 above). Consequently, that argument must be rejected on the same basis.
76 Secondly, the applicants consider that the Commission was slow to communicate information on the JFO to the ICCAT, in contravention of the principle of sound administration in so far as the delay complained of was unjustifiable and had the effect of preventing the applicants from carrying out their fishing operations for a seven‑day period.
77 The Commission is of the opinion that there was no breach of the principle of sound administration since, in particular in respect of the notification of the JFO to the ICCAT, it had to wait for the Greek and French Governments to notify it of the JFO and for the necessary amendments to be made to the national fishing plans. It adds that the delay in communication of the JFO to the ICCAT was caused by discrepancies between the information previously submitted by the Greek authorities and that contained in the notification of the applicants’ JFO which the Greek authorities sent to the Commission.
78 However, even if the applicants’ second argument were well founded, it would not lead to the annulment of the contested regulation and must therefore be rejected as ineffective.
79 According to the applicants, the delay in that communication entailed a delay to the start of the fishing. That is irrelevant in the context of the examination of the present action, the object of which is not to determine the date on which fishing started, but whether the prohibition on fishing was well founded. In that regard, it must be noted that, at the hearing, the applicants themselves accepted that those were two separate events.
80 Furthermore, the Commission fixed the date for prohibition of the fishing on the basis of the data relating to the catches made since the start of the fishing, namely 16 May 2010, by all the Greek and French seiners, including the applicants. In that context, it is common ground that, if the seiners had begun their fishing activities earlier because of more rapid communication of the JFO, they would, a priori, have reached their quota earlier and the fishing would also have been stopped earlier.
81 In the light of the foregoing, the third plea in law must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
82 Under Article 87(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the Commission’s costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders Bloufin Touna Ellas Naftiki Etaireia, Chrisderic et André Sébastien Fortassier to pay the costs.
Papasavvas | Vadapalas | O’Higgins |
Delivered in open court in Luxembourg on 27 February 2013.
[Signatures]