JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)
13 June 2006 (*)
(Fishing – Multiannual guidance programmes – Request to increase the objectives on safety grounds – Decision 97/413/EC – Refusal of the Commission – Action for annulment – Admissibility – Competence of the Commission)
In Case T‑192/03,
Atlantean Ltd, established in Killybegs (Ireland), represented initially by G. Hogan SC, E. Regan SC and A. Hussey, Solicitor, then by G. Hogan SC, E. Regan SC and M. Fraser, Solicitor, with an address for service in Luxembourg,
applicant,
supported by
Ireland, represented by D. O’Hagan and C. O’Toole, acting as Agents, and by D. Conlan Smyth, Barrister, with an address for service in Luxembourg,
intervener,
v
Commission of the European Communities, represented by G. Braun and B. Doherty, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for annulment of Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall (OJ 2003 L 90, p. 48), in so far as it rejects the request to increase the capacity of the vessel Atlantean,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (First Chamber),
composed of J.D. Cooke, President, R. García-Valdecasas and I. Labucka, Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 23 November 2005,
gives the following
Judgment
Legal background
1 Article 4(2) of Council Decision 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with a view to achieving a balance on a sustainable basis between resources and their exploitation (OJ 1997 L 175, p. 27) is worded as follows:
‘In the multiannual guidance programmes for Member States, increases in capacity resulting exclusively from safety improvements shall justify, on a case‑by‑case basis, an increase by the same amount of the objectives for fleet segments where they do not increase the fishing effort of the vessels concerned.’
2 According to point 3.3 of the annex to Commission Decision 98/125/EC of 16 December 1997 approving the multiannual guidance programme for the fishing fleet of Ireland for the period from 1 January 1997 to 31 December 2001 (OJ 1998 L 39, p. 41; hereinafter ‘the MAGP IV’):
‘Member States may at any time submit to the Commission a programme of safety improvements. In accordance with Articles 3 and 4 of Decision 97/413 … the Commission will decide whether any capacity increase foreseen by such a programme justifies a corresponding increase in the objectives of the MAGP IV.
…’
3 Article 6 of Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (OJ 1999 L 337, p. 10) reads as follows:
‘1. Fleet renewal and the modernisation of fishing vessels shall be organised in accordance with this title.
Each Member State shall submit to the Commission, for approval in accordance with the procedure laid down in Article 23(2), permanent arrangements for monitoring fleet renewal and modernisation. Within the framework of these arrangements Member States shall demonstrate that entries and exits from the fleet will be managed in such a way that the capacity does not exceed the annual objectives fixed in the multiannual guidance programme, overall and for the segments concerned, or where appropriate that fishing capacity is gradually reduced to attain these objectives.
These arrangements shall, in particular, take into account that capacity, other than that of vessels of less than 12 metres overall length excluding trawlers, which has been withdrawn with public aid, cannot be replaced.
2. Member States can submit a request for a clearly identified and quantified increase in the capacity objectives for measures to improve safety, navigation at sea, hygiene, product quality and working conditions provided that these measures do not result in an increase in the exploitation rate of the resources concerned.
Such a request shall be examined by the Commission and approved in accordance with the procedure laid down in Article 23(2). Any capacity increase shall be managed by the Member States under the permanent arrangements referred to in paragraph 1.’
4 Article 4(2) of Decision 97/413 was repealed with effect from 1 January 2002 by Council Decision 2002/70/EC of 28 January 2002 amending Decision 97/413 (OJ 2002 L 31, p. 77).
5 Article 11(5) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the common fisheries policy (OJ 2002 L 358, p. 59) reads as follows:
‘On fishing vessels of five years of age or more, modernisation over the main deck to improve safety on board, working conditions, hygiene and product quality may increase the tonnage of the vessel, provided that such modernisation does not increase the ability of the vessel to catch fish …’
Facts
6 Atlantean Ltd, a company governed by Irish law, is the owner of the fishing vessel Atlantean, which forms part of the pelagic segment of the Irish fleet. In 1999 the applicant replaced a vessel having the same name, which had then been in service for 18 years. The new vessel was registered on the Irish register of ships in the same year and was granted a fishing licence on an annual basis.
7 On 30 August 1996 the applicant wrote to the Irish Department of the Marine (‘the Department’) requesting permission to replace the existing vessel Atlantean with a new vessel and to benefit from any additional ‘safety tonnage’ available.
8 The Department replied to the applicant in October 1996, stating that the question of components of the new vessel relating to safety was the subject of discussions and that it was not possible at this stage to ‘determine whether such components [would] be included in the official measured tonnage of the vessel’.
9 Between 1999 and 2001 correspondence relating to Article 4(2) of Decision 97/413 was exchanged between the Department and the Commission.
10 By letter of 26 November 2001, the applicant applied to the Department for approval of an increase in capacity for safety improvements, pursuant to Article 4(2) of Decision 97/413 and point 3.3 of the annex to Decision 98/125.
11 By letter of 14 December 2001, the Department requested the Commission to increase the polyvalent segment of the Irish fleet by 1 304 gross tonnes (‘GT’) and the pelagic segment by 5 335 GT under Article 4(2) of Decision 97/413. That letter supplemented a previous request submitted by the Department concerning two ships, which was sent to the Commission as a ‘test case’.
12 The letter of 14 December 2001 stated that it was prompted by the requests of 38 owners of vessels who had altered or replaced their vessels or who intended to do so. It was accompanied by detailed documentation relating to the 38 vessels concerned. It is apparent from a table enclosed with the letter that the applicant was among those owners and that it sought an increase in capacity of 833 GT.
13 The Department submitted further applications to the Commission in December 2001.
14 On 4 April 2003 the Commission adopted Decision 2003/245/EC on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length (OJ 2003 L 90, p. 48; ‘the contested decision’).
15 The operative part of the contested decision reads as follows:
‘Article 1
Eligibility of requests
The requests to increase MAGP IV tonnage objectives will be considered eligible subject to the following conditions:
1. the requests have been forwarded on a case-by-case basis by the Member State before 31 December 2001;
2. the vessel must be properly registered in the Fleet Register of the Community;
3. the vessel concerned has an overall length of 15 m or more;
4. the increase in tonnage is the result of modernisation works over the main deck performed or to be performed on an existing registered vessel at least five years old on the starting date of the works. In the case where a vessel has been lost at sea, the increase in tonnage is the result of a greater volume over the main deck of the replacement vessel with respect to the vessel that was lost;
5. the increase in tonnage is justified in order to improve safety, navigation at sea, hygiene, product quality and working conditions;
6. the volume under the main deck of the modified vessel or the replacement vessel is not increased.
Requests to increase the MAGP IV power objectives will not be eligible.
Article 2
The requests that are accepted according to the criteria fixed in Article 1 are those listed in Annex I.
The requests that are rejected according to the criteria fixed in Article 1 are those listed in Annex II.
Article 3
This Decision is addressed to the Kingdom of Belgium, Ireland, the Kingdom of the Netherlands, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.’
16 The applicant’s vessel is on the list of ‘rejected requests’ in Annex II to the contested decision.
Procedure and forms of order sought by the parties
17 By application lodged at the Registry of the Court of First Instance on 3 June 2003, the applicant brought the present action.
18 By order of 3 March 2004, the President of the Fifth Chamber of the Court of First Instance granted Ireland leave to intervene in support of the form of order sought by the applicant.
19 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of measures of organisation of procedure, requested the parties to produce certain documents and to answer certain written questions. The parties complied with those requests.
20 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 23 November 2005.
21 The applicant claims that the Court should:
– annul the contested decision in so far as it rejects the request for an increase in capacity as regards the vessel Atlantean;
– order the Commission to pay the costs.
22 The Commission contends that the Court should:
– dismiss the application as inadmissible;
– in the alternative, dismiss the application as unfounded;
– order the applicant to pay the costs.
Admissibility
23 The Commission submits that the present action is inadmissible on the ground that the applicant is not directly and individually concerned by the contested decision for the purposes of the fourth paragraph of Article 230 EC.
Arguments of the parties
24 The Commission submits, by way of preliminary observation, that the contested decision is addressed to the Member States concerned. The applicant is not the addressee of the decision, it is not mentioned by name in the decision and it had no direct dialogue with the Commission.
25 The contested decision was, in the Commission’s submission, adopted following a request by Ireland for an increase in the capacity of its entire fleet. Although the Irish authorities based their request on facts relating to specific vessels, the contested decision cannot be regarded as having in reality been addressed to the applicant.
26 The Commission claims that the applicant is not individually concerned by the contested decision. It is affected by the decision only inasmuch as it owns a vessel in Ireland. The contested decision does not adversely affect the applicant’s property rights in that vessel and the applicant can continue to fish with its present vessel (Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraph 13). Furthermore, even on the assumption that the category of owners of fishing vessels in Ireland is entirely closed, the applicant is not affected by the decision any more than any other owner of a fishing vessel in Ireland.
27 As regards the fact that the contested decision mentions the Atlantean in Annex II, the Commission asserts that such a reference is solely the consequence of the factual context of the decision (Case T-482/93 Weber v Commission [1996] ECR II-609).
28 The case-law shows that an act does not lose its general scope and hence its legislative nature simply because it is possible to ascertain more or less precisely the number or even the identity of the persons to whom it applies at any given time as long as there is no doubt that it is applicable as the result of an objective situation of law or of fact which the act specifies and which is in harmony with its ultimate objective. It is not sufficient to demonstrate that the measure in issue applies only to a ‘closed group’ of traders (Case T-298/94 Roquette Frères v Council [1996] ECR II-1531, paragraphs 41 and 42). In any event, in the present case the group of persons connected with specific vessels is not established, since a vessel may change owner.
29 Nor is the applicant directly concerned for the purposes of the case-law (Joined Cases T-198/95, T-171/96, T-230/97, T-174/98 and T-225/99 Comafrica and Dole Fresh Fruit Europe v Commission [2001] ECR II‑1975, paragraph 96). The sole legal effect of the contested decision is to grant an increase in capacity of 203 GT to the Irish fleet (see Article 4(2) of Decision 97/413).
30 The issue as to a direct effect may be reduced in this case to a simple question, namely, what has the Commission done to the applicant? The Commission also observes that if the contested decision was in fact to have automatic effects, those effects would have already been apparent.
31 It is for the Irish authorities to decide how to use the increase in capacity and how to deal with requests for capacity in excess of the level authorised by the Commission (see Article 6(2) of Regulation No 2792/1999). Thus, any decision in relation to specific vessels requires the application of other intermediate rules by the Irish authorities and is not purely automatic.
32 In response to the applicant’s argument that the Irish authorities are bound by the contested decision, the Commission contends that the decision is binding only in so far as it determines the request to increase the capacity objectives for the Irish fleet. The contested decision is not a decision relating to the licences granted to individual vessels, which is a matter for the Member States. Furthermore, when granting a licence to the applicant’s vessel in 1999 (see paragraph 6 above), the Irish authorities did not refer to any decision of the Commission.
33 The Commission observes that, according to the applicant, the first ‘automatic effect’ of the contested decision is a letter of 23 December 2003 from the Department to the applicant. In stating that the applicant could keep its licence by purchasing additional capacity according to a timetable fixed in that letter, the letter makes reference to rules and procedures which are not in the contested decision. The conditions laid down in that letter therefore do not derive from Community rules alone, without the need for the application of other intermediate measures (Comafrica and Dole Fresh Fruit Europe v Commission, paragraph 29 above, paragraph 96).
34 The second ‘automatic effect’ of the contested decision alleged by the applicant is linked to the new national licensing policy adopted in Ireland in November 2003 (Policy Directive 2/2003). That policy is not an automatic consequence of the contested decision. The new policy covers a great variety of subjects, extending far beyond the question of the tonnage corresponding to safety equipment.
35 Furthermore, although the owner of a vessel mentioned in Annex I may claim that he has a legitimate expectation that the requests which he has submitted at national level concerning the licence of his vessel will be accepted, that legitimate expectation has no equivalent in the case of a negative decision. Even if the Commission rejects the request to increase the objectives of capacity for an entire fleet, the size of individual vessels might still be increased, since a Member State might grant requests for increased capacity within the limits of the ceiling set in the context of MAGP IV. In particular, there is reserve capacity in Ireland. Furthermore, there is a market for capacities in Ireland, so that an owner may still purchase additional capacity for a new vessel.
36 The applicant submits that it does have locus standi in this case and that it is indeed both individually and directly concerned by the contested decision.
37 It contends, in particular, as regards direct concern, that the crucial decision is adopted by the Commission and is binding on the Member State, which has no discretion when implementing it and observes that it is the Commission that grants increases in capacity to individual fishing vessels.
38 The direct and automatic effect of the contested decision vis-à-vis the applicant is demonstrated by Policy Directive 2/2003 and by the Department’s letter of 23 December 2003 directing the applicant to acquire ‘additional safety tonnage’ under pain of having its licence withdrawn at the end of January 2004. The applicant was, as a result, forced to take a further loan of EUR 9 060 000 to cover the costs of acquiring replacement capacity equivalent to the capacity of safety tonnage refused by the Commission.
Findings of the Court
39 The fourth paragraph of Article 230 EC provides that any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or decision addressed to another person, is of direct and individual concern to the former.
40 As the contested decision was addressed to Ireland and to the other Member States concerned, the Court must decide whether it is of direct and individual concern to the applicant.
41 As to whether the applicant is individually concerned by the contested decision, it must be borne in mind that it is settled case-law that persons other than the addressees of a decision can claim to be individually concerned only if the decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed (Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Piraiki-Patraiki and Others v Commission, paragraph 26 above, paragraph 11; and Case T-435/93 ASPEC and Others v Commission [1995] ECR II‑1281, paragraph 62).
42 It is to be noted in this regard that in the contested decision the Commission ruled on a number of requests by Member States for an overall increase in their MAGP IV objectives. However, the request to the Commission for an increase in respect of the Irish national fleet was made up of all of the individual requests of owners of vessels, including the applicant’s request.
43 It should also be noted that the Commission was required to consider those individual requests ‘case by case’ under Article 4(2) of Decision 97/413 (see also recital 2 of the contested decision). The Commission maintained in its written submissions that it had examined ‘case by case’ the situation of each vessel mentioned in Ireland’s request and confirmed at the hearing that the expression ‘case by case’ meant ‘vessel by vessel’. In that regard, the Court would point out that the Netherlands’ ‘global request’ was rejected by the Commission on the ground that it had not been ‘detailed case by case’ (Annex II).
44 Furthermore, the Commission lists the vessels concerned in Annex I (‘accepted requests’) and Annex II (‘rejected requests’) to the contested decision. Accordingly, the name of the applicant’s vessel appears in Annex II.
45 Although the contested decision was addressed to the Member States concerned, it clearly applies to a series of identified vessels. The contested decision must therefore be considered to be a series of individual decisions, each affecting the legal situation of the owners of those vessels, including the legal situation of the applicant (see, by analogy, Joined Cases 41/70 to 44/70 International Fruit Company and Others v Commission [1971] ECR 411, paragraphs 17 to 22).
46 The Court considers that the number and identity of the vessel-owners in question were fixed and ascertainable even before the date of the contested decision and that the Commission was in a position to know that its decision affected solely the interests and positions of those owners. The contested decision concerns a closed group of identified persons at the time of its adoption, whose rights the Commission intended to regulate. It follows that the factual situation thus created characterises the applicant by reference to all other persons and distinguishes it individually in the same way as an addressee of the decision (Joined Cases 106/63 and 107/63 Toepfer and Getreide-Import v Commission [1965] ECR 405, 411).
47 As to whether the applicant is directly concerned by the contested decision within the meaning of the fourth paragraph of Article 230 EC, two cumulative criteria are identified in settled case-law.
48 First, the measure at issue must directly affect the legal situation of the person concerned. Second, that measure must leave no discretion to the addressees entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (Case C‑386/96 P Dreyfus v Commission [1998] ECR I-2309, paragraph 43, and Case T-69/99 DSTV v Commission [2000] ECR II-4039, paragraph 24). The condition required by the second criterion is also satisfied where the possibility for addressees not to give effect to the Community measure is purely theoretical and their intention to act in conformity with it is not in doubt (Dreyfus v Commission, cited above, paragraph 44; see also, to that effect, Piraiki-Patraiki and Others v Commission, paragraph 26 above, paragraphs 8 to 10).
49 In the present case, it is common ground that the Commission was the only authority authorised to adopt a decision in application of Article 4(2) of Decision 97/413. No other administrative entity, the Irish authorities included, could allocate increases in capacity for reasons of safety on the basis of that provision.
50 Furthermore, as pointed out in paragraph 43 above, the Commission did actually take decisions on a ‘case by case’ basis concerning the eligibility of the requests for increase in capacity of the vessels in question. Each request presented by the owners of vessels is given an express reply in the annexes to the contested decision, which provides for specific increases in tonnage for the vessels in Annex I and awards no increase in tonnage to the vessels listed in Annex II. Thus, the contested decision gives an explicit answer to the question whether the vessels designated in the annexes may or may not benefit from the application of Article 4(2) of Decision 97/413.
51 In the contested decision, the Commission, as the only authority with competence in the matter, rules definitively on the eligibility for an increase in capacity of certain particular vessels by reference to the conditions of the application of the derogation referred to in Article 4(2) of Decision 97/413. In finding that the applicant’s vessel is not eligible, the contested decision has the direct and definitive effect of precluding the applicant from the possibility of benefiting from a measure of Community law. It follows that such a decision is of direct concern to the applicant.
52 Furthermore, in accordance with their obligation to implement Community law, the Member States were obliged to grant the increases mentioned in Annex I to the corresponding vessels. In particular, they could not grant additional capacity agreed by the Commission for a vessel in Annex I to a vessel in Annex II. The vessels in Annex II, including the applicant’s vessel, are therefore not entitled to an increase in capacity on the ground of improvements in safety. Since only the Commission could allocate such an increase in capacity, the vessels’ definitive fate was fixed by the Commission.
53 That effect of the contested decision follows solely from the Community rules, because the Commission is the only authority competent to apply Article 4(2) of Decision 97/413. The national authorities have no discretion as regards their obligation to implement that decision. They have no choice or scope for manoeuvre when allocating increased capacity for safety and must implement the decision in a purely automatic way, no other intermediate rules being applicable.
54 The parties’ arguments concerning the practical or other effects of the contested decision on the vessels in question are irrelevant in that regard. The Court considers that the applicant is directly concerned in that the contested decision excluded the eligibility of its vessel for an increase in capacity in application of Article 4(2) of Decision 97/413, irrespective of the practical situation of the vessel.
55 The findings set out in paragraphs 49 to 53 above are not called in question by the Commission’s argument that Ireland may in theory decide to grant the additional capacity to the applicant’s vessel. A national decision of that nature would not mean that the Commission’s decision ceased to apply automatically. Legally speaking, the national decision would remain extraneous to the application in Community law of the contested decision. Its effect would be to alter the applicant’s situation once again, in particular by removing the need for the applicant to purchase capacity. That second alteration of the applicant’s legal situation would be the consequence of the national decision alone and not of the implementation of the contested decision.
56 As regards the Commission’s argument that the applicant was able to avoid negative consequences by purchasing additional capacity on the market, far from excluding the direct effect of the contested decision, this shows that the decision had made it necessary for the applicant to take measures to deal with the situation created by the contested decision.
57 It follows that the plea of inadmissibility raised by the Commission must be rejected.
Substance
58 The applicant relies on nine pleas in support of its action:
– a first plea, alleging breach of the principle of legal certainty;
– a second plea, alleging breach of the principle of protection of legitimate expectations;
– a third plea, alleging breach of the principle of non-retroactivity;
– a fourth plea, alleging breach of the principles of non-discrimination and of equal treatment;
– a fifth plea, alleging breach of the principle of proportionality;
– a sixth plea, alleging that the Commission lacked competence;
– a seventh plea, alleging breach of the obligation to state reasons laid down in Article 253 EC;
– an eighth plea, alleging breach of the right to be heard and of the rights of the defence;
– a ninth plea, alleging misuse of powers.
59 The Court will examine the sixth plea first.
Arguments of the parties
60 The applicant maintains that Decision 97/413 establishes the relevant criteria concerning requests to increase capacity on safety grounds and that the Commission cannot modify or annul the effects of that decision by adopting its own criteria. However, in the contested decision the Commission applied wholly new criteria which did not exist at the time when Decision 97/413 was adopted, or at the time when the request was submitted, or at the time when the request was considered by the Commission.
61 The applicant accepts that the criteria set out in Article 1(1) to (3) and (5) of the contested decision (see paragraph 15 above) are compatible with Article 4(2) of Decision 97/413. By contrast, the criterion set out in Article 1(4) of the contested decision, namely that the increase in tonnage must be the result of modernisation works over the main deck performed or to be performed on an existing registered vessel at least five years old on the starting date of the works (‘the fourth criterion’), is wholly incompatible with Article 4(2) of Decision 97/413.
62 In the first place, the fourth criterion has the effect of excluding new vessels from the benefit of Decision 97/413. However, such a new criterion does not follow from Decision 97/413. Nor was the ineligibility of new vessels mentioned by the Commission in its correspondence with the Department concerning new vessels. On the contrary, that correspondence shows that it was accepted that new vessels were eligible.
63 Furthermore, the Commission’s arguments in that regard would appear to show that it never examined the applicant’s case. The increase in the size of the Atlantean for safety reasons, expressed in GT, would have reduced its actual capacity to carry fish.
64 In the second place, the applicant claims that the five-year limit that determines eligibility, for which Decision 97/413 makes no provision, is entirely arbitrary and is imposed with the sole aim of excluding a predetermined number of applications. That criterion was adopted in subsequent Council legislation, namely in Article 11(5) of Regulation No 2371/2002. The Commission could not confer on itself the power to establish such a criterion before that regulation entered into force.
65 In the third place, as regards the prohibition of work below the main deck, the applicant observes that that prohibition does not result from Article 4(2) of Decision 97/413 and is not found in any of the correspondence between the Commission and the Department.
66 In the fourth place, as regards vessels lost at sea, the applicant claims that that exception was specifically introduced in order to accommodate applications from the United Kingdom (see Annex I to the contested decision).
67 Furthermore, the applicant submits that the criterion laid down in Article 1(6) of the contested decision, namely that the volume below the main deck of the modified or replacement vessel must not be increased (‘the sixth criterion’), is also wholly incompatible with Article 4(2) of Decision 97/413.
68 The Commission contends that the criteria employed appear explicitly or implicitly in the applicable rules. It observes that, in agricultural matters, including fishing, the Community institutions have a wide discretion (Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraph 42, and Case C-189/01 Jippes and Others [2001] ECR I-5689, paragraph 80).
69 The Commission claims that the fourth criterion merely applies the principles laid down in Decision 97/413.
70 In the first place, as regards the exclusion of new vessels, the Commission observes that Article 4(2) of Decision 97/413 provided that increases in capacity on grounds of safety were acceptable only if they did not entail an increase in the fishing effort of the vessels concerned. That limitation is in keeping with the general objective of Decision 97/413, which is to reduce the amount of fish caught by each Member State’s fleet.
71 The Commission maintains that it is generally accepted that new vessels are more efficient than the vessels which they replace, so that even if tonnage or power remains constant, the real capacity of a new vessel is higher. Thus, introducing a new vessel would inevitably ‘increase the fishing effort of the vessels concerned’ and therefore not be covered by the exception referred to in Article 4(2) of Decision 97/413.
72 The applicant extends the meaning of ‘improvement’ in Article 4(2) of Decision 97/413 to cover the entire replacement of a vessel. The capacity of a new vessel is greater than that of the vessel which it replaces owing not only to the safety improvements but also to its general technical superiority. It is therefore impossible to take the view that the increase in the capacity of the Atlantean resulted ‘exclusively’ from safety improvements, as required by that provision.
73 The Commission further submits that Article 4(2) of Decision 97/413 was not designed as a procedure for the entry of new fishing vessels. These are governed by the entry and exit system referred to in Article 6 of Regulation No 2792/1999 and Article 6 of Decision 97/413. The applicant’s interpretation would mean that every vessel, no matter how new, could be replaced at any time by another vessel. Such a logic would give carte blanche for fleet increases and might even threaten safety at sea. Shipbuilders and shipowners would be tempted to build vessels to the maximum possible tonnage and power but to skimp on safety equipment.
74 Furthermore, the purpose of Article 4(2) of Decision 97/413 is to allow increased capacity based on ‘safety improvements’. A new vessel meets recent safety standards. Consequently, the safety equipment of new vessels does not need significant improvements.
75 The correspondence between Ireland and the Commission to which the applicant refers merely constitutes a request for information. In that correspondence, the Commission did not recite all the applicable criteria and had no reason to do so.
76 Contrary to the applicant’s contention, the Commission did carry out a case-by-case assessment of the application submitted by Ireland and of each vessel mentioned in that application.
77 In the second place, as regards the five-year criterion, the Commission submits that an age‑limit must be fixed in order to determine in an objective way the concepts of ‘new vessel’ and ‘existing vessel’. The Commission took a period of five years because a fishing vessel has an average life of 20 to 25 years and does not normally require modernisation during the first five years. The Commission does not contend that Article 11(5) of Regulation No 2371/2002 is the legal basis for the five-year period. However, that provision reflects the Commission’s philosophy in that regard.
78 In the third place, as regards the criterion that the works must be above the main deck, the Commission observes that, according to Archimedes’ principle, the weight carried by the vessel is equal to the amount of water displaced by the submerged part of the hull. Any increase in the size of the hull inevitably increases the quantity of water displaced and therefore the weight which the vessel can carry. Thus, increasing the size of the hull corresponds to an increase in the size of the vessel and therefore in the fishing effort. The Commission explains that it therefore took the view that an increase in volume below the main deck inevitably meant an increase in fishing effort and was thus contrary to Article 4(2) of Decision 97/413.
79 Conversely, improvements over the main deck do not usually increase the capacity of the vessel and are more closely linked with safety. The Commission maintains that it is not possible to add significant weight over the main deck, as that has negative effects on stability. Fish holds cannot be situated over the main deck, which is generally used for work and accommodation.
80 As regards the applicant’s assertion that the fish-carrying capacity of the vessel has decreased, the Commission replies that that is not consistent with the information from the shipyard where the vessel was built. It is also incorrect to claim that in the abstract a larger vessel is more stable. The Commission claims that stability depends on the vessel’s weight distribution and the shape of its hull and not on its volume.
81 In the fourth place, the Commission points out that although a vessel of under five years of age should not need to be modernised or replaced, it might be lost at sea. In that case, the replacement vessel would not necessarily be identical to its predecessor and the safety equipment might be improved when the vessel was replaced.
82 As regards the sixth criterion, the Commission submits that it is justified for the reasons set out above (paragraph 78).
Findings of the Court
83 In Article 1 of the contested decision, the Commission sets out six criteria for eligibility of requests for increased capacity (see paragraph 15 above). The applicant claims that the Commission was not competent to adopt the fourth and sixth criteria. It contends, in particular, that the Commission exceeded its powers by limiting the concept of safety improvements to alterations to existing registered vessels at least five years old on the starting date of the works (the second and fourth criteria).
84 The Court of Justice has held that the Commission is authorised to adopt all the implementing measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council (Case 121/83 Zuckerfabrik Franken [1984] ECR 2039, paragraph 13; Case C-478/93 Netherlands v Commission [1995] ECR I-3081, paragraph 31; and Case C-239/01 Germany v Commission [2003] ECR I-10333, paragraph 55).
85 In the present case, it follows from Article 9 of Decision 97/413 (and from the legislation cited there) that the Commission was authorised to implement the objectives and procedures referred to in that decision under the so-called ‘management committee’ procedure (see also recital 9 of the contested decision). According to the case-law, the Commission may have a particularly significant power of implementation in the context of such a procedure (see, to that effect, Case 23/75 Rey Soda [1975] ECR 1279, paragraphs 13 and 14).
86 However, the Commission does not contend that it was authorised to add entirely new criteria in the contested decision. In accepting that the fourth criterion had the effect of rendering the new vessels ineligible for an increase in capacity under Article 4(2) of Decision 97/413, however, the Commission claims that those criteria followed expressly or by implication from that provision (see paragraphs 68 and 69 above).
87 The Court must therefore consider whether the exclusion of new vessels is an implementation of the main criterion set out in Article 4(2) of Decision 97/413 or whether it is contrary to that provision.
88 It must be pointed out that Article 4(2) of Decision 97/413 (see paragraph 1 above) imposes no limit as regards the age of a vessel eligible for an increase in capacity on safety grounds. At first sight, the wording of that provision permits any increase in capacity resulting from safety improvements, provided that those increases do not lead to an increase in the fishing effort. If the Council had intended to exclude new vessels it would in all likelihood have made its intention clear (see, in that regard, paragraph 100 below).
89 It should also be noted that the other provisions which make reference to Article 4(2) of Decision 97/413, namely point 3.3 of the annex to Decision 98/125 (see paragraph 2 above) and Article 6(2) of Regulation No 2792/1999 (see paragraph 3 above), give no indication that that exception concerns solely vessels more than five years old (see also the 11th recital of Decision 97/413).
90 It should be noted, in that regard, that Article 6 of Regulation No 2792/1999 is entitled ‘Fleet renewal and the modernisation of fishing vessels’. The Commission acknowledged at the hearing that Article 6(2) of that regulation reflected Article 4(2) of Decision 97/413. The Court considers, particularly in the light of that title, that if paragraph 2 of Article 6 applied only to old vessels, the regulation would say so.
91 Contrary to the Commission’s contention, the concept of improvements referred to in Article 4(2) of Decision 97/413 must be understood not as referring to improvements to a particular vessel but as referring to the national fleet. In that regard, it should be noted, in particular, that point 3.3 of the annex to Decision 98/125 refers to a ‘programme of safety improvements’ of the national fleet in general.
92 It is also appropriate to bear in mind the objectives of Decision 97/413. The objective of that decision is to conserve the fishing stocks in Community waters. However, the Council took into account ‘the need to ensure the highest safety standards in the Community’ (12th recital). Accordingly, it included Article 3 (which concerns fishing vessels of less than 12 metres overall) and Article 4(2) in the decision.
93 Contrary to the impression given by the Commission, it is not necessary, in order to ensure the abovementioned objective of Decision 97/413, that new vessels be excluded from the regime established by Article 4(2) of that decision. The Court emphasises, in that regard, that Article 4(2) is consistent with that objective in that it prohibits any increase in the fishing effort. The Commission could have examined the vessels, case by case, including the Atlantean, in order to establish whether or not there was an increase in the fishing effort. In fact, it states itself that the prohibition of such an increase seeks to satisfy the general objective of Decision 97/413, which is to reduce the quantity of fish caught in the Community (see paragraph 70 above).
94 The Commission contends that Article 4(2) of Decision 97/413 was not intended to put in place a procedure for the entry of new fishing vessels. That procedure is, it maintains, governed by the system of entry and exit referred to in Article 6 of Regulation No 2792/1999 and Article 6 of Decision 97/413.
95 Those assertions of the Commission are not disputed by the applicant. The applicant recognises that all new vessels must comply with the entry procedure laid down in those provisions. However, there is nothing to prevent a vessel which has entered the fleet in accordance with the entry and exit system referred to in Article 6 of Regulation No 2792/1999 and Article 6 of Decision 97/413 from benefiting from the derogation provided for in Article 4(2) of Decision 97/413. In effect, the final sentence of Article 6(2) of Regulation No 2792/1999 provides that any capacity increase is to be managed by the Member States under the permanent arrangements for monitoring fleet renewal and modernisation referred to in Article 6(1) of that regulation.
96 It should further be noted that the entry and exit system referred to in Article 6 of Decision 97/413 is not confined to new vessels. In order to introduce a used vessel (which previously formed part, for example, of a different national fleet), it is necessary, in that system, to remove capacity. The Commission does not dispute that used vessels are able to benefit from an increase in capacity under Article 4(2) of that decision.
97 Furthermore, the Court observes that the Commission itself has interpreted Article 4(2) of Decision 97/413 as permitting requests for increased capacity connected with the introduction of new vessels.
98 The Court would point out in that regard that the preparatory documents relating to Decision 2002/70, which repealed Article 4(2) of Decision 97/413 with effect from 1 January 2002, show that the Commission considered that that provision also applied to new vessels. Decision 2002/70 extended the period of application of Decision 97/413 until 31 December 2002. In the words of the grounds of the proposal for the Council decision amending Decision 97/413 (COM(2001) 322 final), drafted by the Commission:
‘… any prolongation [of Decision 97/413] should at least be associated with measures to make [the MAGP IV objectives] more effective. The attached proposal therefore removes the possibilities that currently exist under Articles 3 and 4 of … Decision 97/413 to increase the MAGP objectives on the grounds of safety. All new vessels should be constructed to a certain minimum standard of safety, and the capacity to build these new vessels could be found from within the existing capacity objectives.’
99 It is clear from that passage that the Commission itself considered that Article 4(2) of Decision 97/413 allowed requests to increase capacity linked with the introduction of new vessels and that it therefore intended to remove that provision because, in the Commission’s view, it allowed an excessive increase in the MAGP IV objectives.
100 It should further be noted that, one year after adopting Decision 2002/70, the Council adopted Regulation No 2371/2002, Article 11(5) of which expressly provides, unlike Article 4(2) of Decision 97/413, that an increase in capacity, in particular on safety grounds, is possible only for fishing vessels of five years of age or more (see paragraph 5 above). The wording of that provision is precise and restrictive, in contrast to that of Article 4(2) of Decision 97/413.
101 The Commission, which accepts that Article 11(5) of Regulation No 2371/2002, which entered into force on 1 January 2003, did not apply in the present case and that it was required to adopt the contested decision on the basis of the provisions applicable at the time when it received the requests, that is to say, Article 4(2) of Decision 97/413, none the less claims that Regulation No 2371/2002 ‘reflected its philosophy’ in the matter. The Court holds in that regard, that the similarities between Article 11(5) of Regulation No 2371/2002 and the criteria set out in the contested decision are quite clear. However, those criteria are not found in Decision 97/413 and have the effect of altering the scope of that decision. If the Commission had any objections to Article 4(2) of Decision 97/413 (see paragraph 98 above), it was not entitled to alter its scope (see paragraph 84 above).
102 In addition, it must be noted that, as the applicant and Ireland correctly observed at the hearing, the correspondence between Ireland and the Commission concerning the requests to increase capacity shows that the Commission considered that new vessels could indeed benefit from Article 4(2) of Decision 97/413.
103 By letter of 28 October 1999, Ireland for the first time requested the Commission to grant an increase in capacity under Article 4(2) of Decision 97/413. That request was based on the requests of seven owners of new vessels under construction. In its reply of 10 December 1999, the Commission raised no objection in respect of the fact that the request concerned new vessels. It merely indicated that ‘[t]he volume of the spaces related to safety in the vessels that are removed must also be known before the additional volumes devoted to safety in the new vessels can be calculated’.
104 In that correspondence, the Commission persisted with its demand that comparisons be drawn between the new vessels and the old ones which were intended to be replaced. Thus, it stated in a letter of 23 January 2001 that it was aware that the volumes that could be classified as devoted to safety would be greater in the new vessels than in the vessels they replaced but that unless that could be quantified it would not be possible to increase the MAGP objectives to take that into account. In spite of the correspondence between Ireland and the Commission, including the letters sent in late 2001 concerning the requests in issue, which related explicitly to the new vessels, it was only in the contested decision that the Commission stated for the first time that new vessels were excluded from the regime established by Article 4(2) of Decision 97/413.
105 The Court further notes that the position adopted by the Commission in the present case is contradictory. One the one hand, the Commission maintains that Article 4(2) of Decision 97/413 did not apply to new vessels; yet, on the other hand, it allowed increases in capacity for new vessels on the basis of that provision if they replaced vessels lost at sea (the fourth criterion). If Article 4(2) of Decision 97/413 excluded new vessels, the same provision could not serve as the basis for increases in capacity for new vessels which replaced vessels lost at sea.
106 The Commission’s argument that the owners of vessels lost at sea were obliged to replace them cannot be accepted. Even if that were the case, the fact remains that the Commission thus allowed new vessels to benefit from Article 4(2) of Decision 97/413 while asserting that that provision excluded new vessels. It should further be observed that even though the owner of an old vessel was also obliged to replace it when it had become unserviceable and unreliable, he was excluded by the Commission from the benefit of Article 4(2) of Decision 97/413.
107 As regards the Commission’s argument that it was not possible to calculate the gain in efficiency of the new vessels which replaced those lost at sea, it must be borne in mind that the Commission claimed that new vessels automatically increased the fishing effort (see paragraph 109 below). The Commission cannot claim that new vessels are more efficient than those they replace and at the same time allow vessels lost at sea to be replaced by new vessels on the ground that it was unable to calculate the gain in efficiency of the new vessels.
108 It should be added that the Commission accepts, in the context of the fourth plea, alleging breach of the principles of non-discrimination and of equal treatment, that ‘an owner wishing to purchase a new vessel may sell the old one and possibly transfer part of his equipment to the new vessel’. It follows that the factors which make a new vessel more efficient are not automatically present on such a vessel.
109 The Commission claims that it is generally accepted that new vessels are more efficient than those which they replace, so that, even if their tonnage or their power remain the same, the ‘real capacity’ of a new vessel is greater. Thus, the introduction of a new vessel inevitably ‘increase[s] the fishing effort of the vessels concerned’ and is therefore not covered by the derogation referred to in Article 4(2) of Decision 97/413.
110 The Court finds that the Commission has not proved to the requisite legal standard that the introduction of a new vessel necessarily leads to an increase in the fishing effort.
111 It is common ground that, as regards the present case, the fishing effort of a vessel is defined as the product of its activity and its capacity expressed in GT (see Article 1(2) of Decision 97/413 and Article 3(1)(iii) of Decision 98/125). It follows from Article 4(2) of Decision 97/413, moreover, that increases in capacity are not permitted if they entail an increase in the fishing effort. However, although there may be a presumption that new vessels are generally more efficient than old vessels, it cannot be inferred that all new vessels are necessarily and systematically more efficient from the point of view of the fishing effort than those which they replace. Thus, some technological improvements do not necessarily affect all vessels. The same logic prompts the observation that the owner of a relatively recent vessel equipped with modern technology may replace his vessel by a new vessel which is safer and more stable, while taking care not to increase the fishing effort.
112 There was nothing to prevent the Commission from determining case by case whether the new vessels, including the Atlantean, did in fact lead to an increase in the fishing effort by comparison with the previous vessels.
113 As regards the Commission’s argument that a new vessel ought already to meet recent safety standards and would not require significant improvements, that argument relates in reality to a political position adopted by the Commission which is now enshrined in the relevant rules (see paragraphs 100 and 101 above). However, that position of the Commission cannot be relied upon in order to alter ex post facto the terms of Article 4(2) of Decision 97/413. It may be presumed that at the time when that decision was adopted the legislature considered that the replacement of an old fishing vessel by a new vessel might be desirable from the point of view of safety.
114 Furthermore, the Commission maintains that in the case of a new vessel capacity increases not only because of safety improvements but also because of the general superiority of the new vessel and that it is therefore impossible to determine whether the increase in capacity is ‘exclusively’ due to safety improvements, as required by Article 4(2) of Decision 97/413.
115 That argument cannot be accepted. Apart from the fact that the Commission reasons in general terms concerning the superiority of new vessels, without reference to the circumstances of each request (see paragraph 111 above), the comparative examination necessary for the purpose of determining increases in capacity of new vessels resulting either from safety improvements or from other types of improvement formed the subject-matter of the correspondence between the Commission and Ireland. At the Commission’s request, the requests were redrafted in order to enable it to make the necessary comparisons. It cannot therefore now maintain that it was impossible to establish whether the increases were due to safety improvements.
116 Last, the fourth criterion limits the concept of safety improvements to ‘modernisation works over the main deck’ (see also the sixth criterion, paragraph 15 above). It is common ground that the applicant’s request concerned an increase in the volume below the main deck. It is sufficient to observe, in that regard, that changes below the deck were prohibited under Article 4(2) of Decision 97/413 if they led to an increase in the fishing effort. However, the Commission has not established that that type of modifications systematically led to such an increase. Once again, the Commission ought to have examined the vessels case by case in deciding that issue.
117 In the light of all of the foregoing, the Court finds that in adopting in the contested decision criteria not provided for in the rules applicable in the present case, the Commission exceeded its powers. The sixth plea must therefore be upheld and the contested decision must be annulled and it is therefore unnecessary to examine the remaining pleas.
Costs
118 Under Article 87(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 successful party’s pleadings. As the Commission has been unsuccessful, it must be ordered, in addition to bearing its own costs, to pay the applicant’s costs, in accordance with the forms of order sought by the applicant. Ireland is ordered to bear its own costs, in accordance with Article 87(4) of the Rules of Procedure.
On those grounds,
THE COURT OF FIRST INSTANCE (First Chamber)
hereby:
1. Annuls Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall in so far as it applies to the applicant’s vessel Atlantean;
2. Orders the Commission to bear its own costs and to pay those incurred by the applicant;
3. Orders Ireland to bear its own costs.
Cooke | García-Valdecasas | Labucka |
Delivered in open court in Luxembourg on 13 June 2006.
E. Coulon | | R. García-Valdecasas |