Case T‑76/11

Kingdom of Spain

v

European Commission

(Fisheries — Measures for the conservation of living aquatic resources — Article 105 of Regulation (EC) No 1224/2009 — Deductions from quotas allocated for a given year on account of overfishing in previous years — Temporal application — Legal certainty — Interpretation guaranteeing compliance with primary law — Principle that penalties must have a proper legal basis — Non-retroactivity)

Summary — Judgment of the General Court (Third Chamber), 21 November 2012

1.      Acts of the institutions — Temporal application — Retrospective effect of a substantive rule — Conditions

2.      Fisheries — Conservation of the resources of the sea — System of fishing quotas — Deductions from quotas allocated for a given year on account of overfishing in previous years — Regulation No 1004/2010 — Legal basis — Article 105 of Regulation No 1224/2009 — Temporal application

(Council Regulation No 1224/2009, Art. 105; Commission Regulation No 1004/2010)

3.      EU law — Principles — Legal certainty — Scope

4.      Fisheries — Conservation of the resources of the sea — System of fishing quotas — Deductions from quotas allocated for a given year on account of overfishing in previous years — Regulation No 1004/2010 — Legal basis — Article 105 of Regulation No 1224/2009 — Breach of the principle of legal certainty — None

(Council Regulation No 1224/2009, Art. 105; Commission Regulation No 1004/2010)

5.      Fisheries — Conservation of the resources of the sea — System of fishing quotas — Deductions from quotas allocated for a given year on account of overfishing in previous years — Regulation No 1004/2010 — Legal basis — Article 105 of Regulation No 1224/2009 — Deductions based on the rules preceding Regulation No 1224/2009 — Infringement of the principle that penalties must have a sound legal basis — None

(Council Regulations No 847/96, Art. 5, No 2371/2002, Art. 23(4) and No 1224/2009, Art. 105; Commission Regulation No 1004/2010)

6.      Fisheries — Conservation of the resources of the sea — System of fishing quotas — Deductions from quotas allocated for a given year on account of overfishing in previous years — Deductions not constituting penalties — Not subject to the principle that penalties must have a proper legal basis

(Council Regulations No 847/96, Art. 5(1) and No 2371/2002, Art. 23(4))

1.      See the text of the decision.

(see para. 26)

2.      The only legal basis on which the Commission could base Regulation No 1004/2010 operating deductions from certain fishing quotas for 2010 on account of overfishing in the previous year is Article 105 of Regulation No 1224/2010 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy. An interpretation of that article to the effect that it was not applicable to overfishing completed before 1 January 2010 would have the consequence that that overfishing could not give rise to deductions and would therefore be of no import. Such a result would be manifestly contrary to the purposes pursued by Regulation No 1224/2009, including the objective of ensuring full compliance with restrictions on fishing opportunities.

Moreover, the Commission is obliged to follow the clear statements of the EU legislature and to apply Article 105 of Regulation No 1224/2009 as from 1 January 2010. If the application of that article to situations existing before it entered into force or became applicable were to prove problematic from the viewpoint of the principle of legal certainty, the Commission would have to interpret it restrictively in order to ensure compliance with that primary law.

(see paras 32, 34)

3.      See the text of the decision.

(see para. 39)

4.      In basing Regulation No 1004/2010 operating deductions from certain fishing quotas for 2010 on account of overfishing in the previous year on Article 105 of Regulation No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, applicable as from 1 January 2010, the Commission applied new legislation to a factual situation existing under the earlier legislation. However, under the legislation preceding Article 105 of Regulation No 1224/2009, the Commission could already make deductions from quotas allocated for a given year on account of overfishing not only in relation to the quotas for the previous year, but also those relating to years preceding that year. Consequently, as the Commission did not make that overfishing subject to a less favourable scheme than that provided for by the legislation in force at the time it was completed, it did not infringe the principle of legal certainty.

(see paras 40, 41, 64, 65)

5.      See the text of the decision.

(see paras 67, 68, 78, 80-83)

6.      The deductions provided for by Article 23(4) of Regulation No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, and Article 5(1) of Regulation No 847/96 introducing additional conditions for year-to-year management of total allowable catches and quotas, are not penalties and accordingly do not come within the scope of the principle that penalties must have a proper legal basis.

The system of fishing quotas of the Union pursues the objective of ensuring the conservation and sustainable exploitation of living aquatic resources. Deductions from quotas are aimed at ensuring compliance with quotas and therefore have the same purpose.

The mere fact that the deductions have that objective does not rule out the possibility that they are penalties for the purposes of the principle that penalties must have a proper legal basis, since penalties may also pursue the same objectives. However, a measure which merely provides for compensation for damage caused and therefore merely restoring the status quo ante is not a penalty for the purposes of the principle that penalties must have a proper legal basis.

Article 23(4) of Regulation No 2371/2002 and Article 5(1) of Regulation No 847/96 provide merely for deductions consisting simply in compensation for overfishing; they make no provision for penalties, that is to say, any measures beyond that compensation.

Although those articles provide for multiplying factors for the calculation of deductions, those multiplying factors cannot be considered penalties going beyond the objective of compensation, since they are intended to ensure full restitution for the damage caused by overfishing. Overfishing has a negative impact on the relevant stock’s ability to reproduce, which is likely to slow down its regeneration and lead to its decline.

(see paras 70-72, 76, 78)