JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)
1 July 2008 (*)
(Action for annulment – Regulation (EC) No 1954/2003 – Fisheries – Management of the fishing effort – Community fishing areas and resources – Action brought by a regional body – Persons individually concerned – Inadmissibility)
In Case T‑37/04,
Região autónoma dos Açores (Portugal), represented initially by M. Renouf, S. Crosby, C. Bryant, Solicitors, and H. Mercer, Barrister, and subsequently by M. Renouf, C. Bryant and H. Mercer,
applicant,
supported by
Seas at Risk VZW, formerly Stichting Seas at Risk Federation, established in Brussels (Belgium),
WWF – World Wide Fund for Nature, established in Gland (Switzerland),
and
Stichting Greenpeace Council, established in Amsterdam (Netherlands),
represented by R. Buxton, Solicitor, and D. Owen, Barrister,
interveners,
v
Council of the European Union, represented by J. Monteiro and F. Florindo Gijón, acting as Agents,
defendant,
supported by
Commission of the European Communities, represented by T. van Rijn and B. Doherty, acting as Agents,
and by
Kingdom of Spain, represented by N. Díaz Abad, abogado del Estado,
interveners,
ACTION for annulment in part of Council Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EEC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95 (OJ 2003 L 289, p. 1),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges,
Registrar: J. Plingers,
having regard to the written procedure and further to the hearing on 14 June 2007,
gives the following
Judgment
Legal context
A – Earlier legislation
1 Articles 347 to 353 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23; ‘the Act of Accession’) laid down the conditions in accordance with which Portuguese vessels may access Community waters and Community vessels may access Portuguese territorial waters. Article 350 of the Act of Accession provided that the arrangements provided for pursuant to those provisions were to be reviewed and that the necessary adjustments which were adopted were to enter into force on 1 January 1996. Under that provision, the Council adopted Regulation (EC) No 1275/94 of 30 May 1994 on adjustments to the arrangements in the fisheries chapters of the Act of Accession of Spain and Portugal (OJ 1994 L 140, p. 1) and two regulations laying down new access conditions: Regulation (EC) No 685/95 of 27 March 1995 on the management of the fishing effort relating to certain Community fishing areas and resources (OJ 1995 L 71, p. 5) and Regulation (EC) No 2027/95 of 15 June 1995 establishing a system for the management of fishing effort relating to certain Community fishing areas and resources (OJ 1995 L 199, p. 1) (collectively, ‘the 1995 Regulations’).
2 The 1995 Regulations contained, in addition to provisions relating to the Kingdom of Spain and the Portuguese Republic, provisions concerning the establishment of a fishing effort management regime for the purposes of Article 4 of Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1), the basic regulation in force at that time. In that way they sought to ensure that there was no increase in the overall level of fishing effort deployed by comparison with earlier levels and to provide for a reduction in that fishing effort if changes in resources made it necessary to introduce a general reduction of fishing opportunities (fourth recital in the preamble to Regulation No 685/95). The 1995 Regulations applied to the Community waters in ICES (International Council for the Exploration of the Sea) areas Vb and VI to X and in CECAF (Fishery Committee for the Eastern Central Atlantic of the United Nations Food and Agriculture Organisation (FAO)) divisions 34.1.1, 34.1.2 and 34.2.0. The exclusive economic zone of the Azores (Portugal), which extends up to 200 nautical miles from the baselines of the islands of the archipelago and is included in ICES area X and CECAF division 34.2.0 (‘the waters of the Azores’), was covered in its entirety.
3 In the present case, the relevant aspects of the 1995 Regulations are the following:
– in accordance with the definition of fisheries set out in Annex I to Regulation No 685/95, the Annex to Regulation No 2027/95 fixed the fishing effort according to fishing area, species concerned (demersal species, deep-sea species, scallop, and so on) and type of fishing gear (fixed or towed);
– with regard to fishing in the waters of the Azores for demersal species and species regarded as deep-sea species for the purposes of those regulations, the Annex to Regulation No 2027/95 allocated the entire fixed-gear fishing effort to the Portuguese Republic and provided that the towed-gear fishing effort was to be zero, thus prohibiting the latter type of fishing;
– point 3 of Annex III to Regulation No 685/95 prohibited – save where provided for under common agreement between the Portuguese Republic and the Kingdom of Spain – fishing for tuna by Spanish vessels in the waters of the Azores or the Madeira archipelago, and fishing for tuna by Portuguese vessels in the waters of the Canary Islands.
4 Furthermore, following the adoption of those regulations, amendments were made to Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 L 261, p. 1) in order to ensure compliance with the fishing effort levels. The new Article 19a(3) and the new Articles 19b, 19c, 19d and 19e(3) of Regulation No 2847/93 imposed a number of additional obligations on vessels operating in areas subject to fishing effort limitation and, in particular, the obligation to communicate to the competent authorities all entries into and exits from the areas in question, together with details of the catch retained on board. Those obligations were collectively known as ‘the notification system’.
5 Finally, in 2002, the Council adopted two regulations specifically concerning certain deep-sea species. The first of those regulations is Council Regulation (EC) No 2340/2002 of 16 December 2002 fixing for 2003 and 2004 the fishing opportunities for deep-sea fish stocks (OJ 2002 L 356, p. 1). It fixes, for each Member State, the total allowable catches (TACs) and the quotas for eight deep-sea species. The second regulation specifically relating to deep-sea species is Council Regulation (EC) No 2347/2002 of 16 December 2002 establishing specific access requirements and associated conditions applicable to fishing for deep-sea stocks (OJ 2002 L 351, p. 6). That regulation seeks, as stated in recitals 3 and 4 in the preamble thereto, to provide for a special fishing permit to be issued for vessels fishing for deep-sea species and to limit the fishing effort for those fish stocks to the levels noted prior to the date of its adoption. That regulation applies to ICES sub-areas I to XIV inclusive and to the Community waters of CECAF divisions 34.1.1, 34.1.2, 34.1.3 and 34.2 (Article 1). Thus the waters of the Azores are also covered by that regulation. Article 3(1) of Regulation No 2347/2002 provides that Member States are to ensure that fishing activities which lead to catches and retention on board of more than 10 tonnes each calendar year of deep-sea species listed in Annex I by vessels flying their flag and registered in their territory are subject to a deep-sea fishing permit. That annex lists 24 species (‘the deep-sea species’).
B – The contested Regulation
6 In view of the expiry on 31 December 2002 of the transitional period provided for in the Act of Accession, the Council adopted Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation No 2847/93 and repealing Regulations No 685/95 and No 2027/95 (OJ 2003 L 289, p. 1; ‘the contested Regulation’). Recital 1 in the preamble to the contested Regulation refers to the fact that Article 4 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) provides that the Council is to establish Community measures governing access to waters and resources and the sustainable pursuit of fishing activities. According to recitals 2, 3 and 4 in the preamble thereto, the contested Regulation seeks to establish a new fishing effort management regime which limits, in the same way as the 1995 Regulations, the fishing effort which may be deployed, whilst removing the discrimination on grounds of nationality provided for in the 1995 Regulations with regard to Spain and Portugal.
7 The contested Regulation applies to the Community fishing waters in the North-East Atlantic, known as ‘the western waters’. The waters of the Azores are covered in their entirety.
8 The provisions of the contested Regulation relevant to the present case are set out below.
9 Article 3(1) provides that the Member States are to:
‘(a) assess the levels of fishing effort exerted … as an annual average of the period 1998 to 2002, in [the areas concerned] for demersal fisheries, excluding [those of deep-sea species] … as laid down in the Annex …;
(b) allocate the level of fishing effort assessed conforming to [point] (a) in each ICES area or CECAF division, with regard to each of the fisheries mentioned in [point] (a)’.
10 The Annex to the contested Regulation defines the fisheries by reference only to the area and the species concerned.
11 Article 5(1) of the contested Regulation states that ‘[i]n the waters up to 100 nautical miles from the baselines of the Azores, Madeira and the Canary Islands, the Member States concerned may restrict fishing to vessels registered in the ports of these islands’ (‘the 100-mile zone’).
12 Article 9 of the contested Regulation provides that ‘[t]he Member States may limit fishing activities by vessels flying their flag to specific gear, seasons or parts of a [fishing] area …’.
13 In reflection of recital 8 in the preamble to the contested Regulation – which states that, since it ‘is the responsibility of flag Member States to adopt measures to regulate fishing effort[,] … it is necessary to ensure transparency and equity of management and monitoring procedures’ – Article 11 of that regulation lays down the procedure to be followed for the adoption of a regulation fixing, for each Member State, the fishing effort in respect of each fishery defined in the Annex to the contested Regulation. Article 11 of the contested Regulation is drafted in the following terms:
‘…
2. The Council, acting by qualified majority on the proposal from the Commission, shall, by 31 May 2004, decide on the maximum annual fishing effort [for each Member State and for each area and each fishery defined in Article 3].
…
3. Should the Council fail to reach a decision by 31 May 2004, the Commission shall adopt, by 31 July 2004, a Regulation fixing the maximum annual fishing effort for each Member State and for each area and fishery …’.
14 Pursuant to Article 11(2) of the contested Regulation, the Council adopted Regulation (EC) No 1415/2004 of 19 July 2004 fixing the maximum annual fishing effort for certain fishing areas and fisheries (OJ 2004 L 258, p. 1), which allocates to the Portuguese Republic the entirety of the fishing effort in the waters of the Azores.
15 Article 13 of the contested Regulation contains provisions concerning the control of fishing activities. It amends Regulation No 2847/93 by providing that the notification system is no longer to apply, except in the case of an area close to the coast of Ireland, defined in Article 6(1) of the contested Regulation, which does not concern the present case.
16 Finally, Article 15(1) of the contested Regulation provides:
‘Regulations … No 685/95 and … No 2027/95 shall be repealed with effect from:
(a) the date of entry into force of the Regulation referred to in Article 11(2) or (3);
or
(b) 1 August 2004,
whichever is the earlier.’
17 In that regard, recital 12 in the preamble to the contested Regulation states that ‘[i]n order to ensure legal certainty, to avoid alterations in the current balance in the areas and resources involved and to guarantee that the fishing effort deployed is in balance with available resources, Regulations … No 685/95 and … No 2027/95 should be repealed’.
Procedure
18 By application lodged at the Registry of the Court on 2 February 2004, the applicant brought the present action.
19 By separate document lodged at the Registry of the Court on 9 March 2004, it also lodged an application for the suspension of operation of part of the contested Regulation and/or of all other provisional measures deemed appropriate. That application was dismissed by order of the President of the Court of First Instance of 7 July 2004 in Case T‑37/04 R Região autónoma dos Açores v Council, not published in the ECR).
20 By separate document lodged at the Registry of the Court on 22 April 2004, the Council raised a plea of inadmissibility under Article 114(1) of the Rules of Procedure of the Court of First Instance. On 4 June 2004, the applicant lodged its observations on that plea.
21 By applications lodged at the Registry of the Court on 30 March and 21 May 2004, respectively, the Commission and the Kingdom of Spain sought leave to intervene in the present case in support of the form of order sought by the Council. Those applications were allowed by Order of 21 June 2004 of the President of the Third Chamber of the Court of First Instance. The Kingdom of Spain and the Commission lodged their statements in intervention limited to the admissibility of the action on 20 September 2004. The applicant and the Council lodged their observations on those statements on 13 December and 19 November 2004 respectively.
22 By applications lodged at the Registry of the Court on 7 June 2004, Seas at Risk VZW, formerly Stichting Seas at Risk Federation, WWF –World Wide Fund for Nature and Stichting Greenpeace Council (collectively, ‘SWG’), on the one hand, and Oceana Europa, on the other, sought leave to intervene in the present case in support of the form of order sought by the applicant. The President of the Third Chamber of the Court allowed the first of those applications by order of 16 February 2005 and dismissed the second by order of 5 April 2005. The intervening associations lodged their statements in intervention, limited to the admissibility of the action, on 18 April 2005.
23 Following the report of the Judge Rapporteur, the Court put written questions to the parties in the context of measures of organisation of the procedure provided for in Article 64 of its Rules of Procedure. The parties replied within the time prescribed for that purpose.
24 By order of the Court of First Instance of 9 January 2006, the plea of inadmissibility was joined to the main proceedings and costs were reserved.
25 The written procedure was closed on 31 August 2006.
26 Following the report of the Judge Rapporteur, the Court decided to open the oral proceedings. Oral argument from the parties and their replies to the questions put by the Court were heard at the hearing on 14 June 2007.
Forms of order sought
27 The applicant, supported by SWG, claims that the Court should:
– declare the action admissible;
– annul Articles 3 and 11 of the contested Regulation, and the Annex thereto, in so far as:
– they provide that the fishing effort fixed under the Regulation must be determined by reference only to the target species and the ICES/CECAF area, but not also by reference to the type of fishing gear used, whether fixed or towed;
– they exclude the deep-sea species from the scope of Articles 3 and 11 of the contested Regulation.
– annul Article 15 of the contested Regulation in so far as the repeal of the 1995 Regulations:
– removes (i) the power of the Community to determine the fishing effort by reference not only to target species and ICES/CECAF area, but also by reference to the type of fishing gear used, and (ii) the determination of the fishing effort, as effected by Regulation No 2027/95;
– removes (i) the power of the Community to determine a maximum annual fishing effort by area in respect of demersal species and (ii) the determination of the maximum annual fishing effort, as effected by Regulation 2027/95;
– removes the exclusion of access of Spanish vessels to the waters of the Azores for fishing of tuna or tuna-like species;
– may take effect on 1 August 2004, whether or not a Regulation under Articles 11(2) or (3) of the contested Regulation has entered into force;
– annul Article 5(1) of the contested Regulation in so far as it does not maintain the exclusion of access of Spanish vessels to the waters of the Azores for fishing of tuna or tuna-like species;
– annul Article 13(b) of the contested Regulation in so far as it exempts the waters of the Azores from the application of Articles 19a(3), 19b, 19c, 19d and 19e(3) of Regulation No 2847/93;
– order the Council to pay the costs.
28 The Council, supported by the Commission and the Kingdom of Spain, contends that the Court should:
– dismiss the action as inadmissible;
– in the alternative, dismiss the action as unfounded;
– order the applicant to pay the costs.
Admissibility
29 The Council, supported by the Kingdom of Spain and by the Commission, contends, first, that the contested Regulation is an act of general application and that, consequently, it cannot be challenged by natural or legal persons under the fourth paragraph of Article 230 EC and, secondly, that, in any event, the applicant is not individually and directly concerned by the contested Regulation within the meaning of that provision.
A – The legal nature of the contested provisions
1. Arguments of the parties
30 The Council, supported by the Kingdom of Spain and by the Commission, contends that the contested provisions do not have the characteristics of a decision and are legislative in character since they apply to objectively determined situations and produce legal effects with respect to categories of economic operators viewed in the abstract. It thus maintains that the contested Regulation is in the nature of a truly legislative measure, not a decision in disguised form, and that, consequently, it is not an act which may be challenged by natural or legal persons. Even though the Council admits that, in certain circumstances, an act of general application may concern a natural or legal person individually, it maintains that that is not so in the present case.
31 The applicant, supported by SWG, submits that the contested provisions, and in particular Article 5(1) of the contested Regulation, are not of general application and in reality amount to a decision addressed to the Portuguese Republic ordering the opening of the waters of the Azores to industrial scale fishing without appropriate protection.
2. Findings of the Court
32 Under the fourth paragraph of Article 230 EC, ‘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 a decision addressed to another person, is of direct and individual concern to the former’.
33 In order to determine whether or not a measure is of general application, it is necessary to appraise its nature and the legal effects which it is intended to produce or in fact produces (Case 307/81 Alusuisse v Council and Commission [1982] ECR 3463, paragraph 8). Thus, an act is of general application if it applies to objectively determined situations and entails legal effects for persons regarded generally and in the abstract (Joined Cases T‑295/04 to T‑297/04 ASAJA and Others v Council [2005] ECR II‑3151, paragraph 31 and the case-law cited). Furthermore, where an instrument contains limitations or derogations which are temporary or territorial in nature, they form an integral part of the provisions as a whole within which they are found and, in the absence of any misuse of powers, are of the same general nature as those provisions (Case C‑298/89 Gibraltar v Council [1993] ECR I‑3605, paragraph 18).
34 In the present case, the general application of the contested Regulation is disputed only in respect of Article 3, Article 5(1), Article 11, Article 13(b), Article 15 and the Annex. With regard to the other provisions of that regulation, the parties agree that they concern all vessels operating in the western waters of the Community whose activities are affected by the existence of a fishing effort management regime.
35 With regard, therefore, only to the contested provisions, it should be noted that those provisions set out the obligations of the Member States and of the Community institutions in the context of ensuring the implementation of the fishing effort management regime (Articles 3 and 11 of the contested Regulation, and the Annex thereto); amend the control provisions laid down in Regulation No 2847/93 (Article 13(b) of the contested Regulation); repeal the 1995 Regulations (Article 15 of the contested Regulation); and authorise the Kingdom of Spain and the Portuguese Republic to restrict fishing in part of the outermost waters under their sovereignty to vessels registered in the ports of those regions (Article 5(1) of the contested Regulation).
36 It must therefore be stated that all the contested provisions contribute, in the same way as the rest of the contested Regulation, to the establishment of a fishing effort management regime for the western waters and to the control of compliance. Accordingly, they concern all Community vessels wishing to carry out activities in that part of the Community waters. Whilst it is true that Article 5(1) of the contested Regulation provides for a territorial derogation from that regime, that derogation – under which access to the waters of the outermost regions of Spain and Portugal may be restricted to fishermen from the islands concerned – applies generally to all vessels wishing to operate in that part of the western waters.
37 Thus, the application of any of the contested provisions depends on the existence of an objective situation: the place where the vessels carry out their fishing activities, as defined by the contested Regulation in accordance with the aim of that regulation, that is to say, the establishment of the conditions for access to the western waters and for the pursuit of fishing activities.
38 In particular, it is appropriate to reject the argument that those provisions are the expression of a decision adopted by the Community legislature to order the Portuguese Republic to open the waters of the Azores to fishing on an industrial scale without appropriate protection. Even supposing that the Community legislature had decided to open the waters of the Azores to fishing on an industrial scale, it must be acknowledged that the contested provisions do not order the Portuguese Republic to take any steps to do so and the alleged opening of the waters of the Azores would come about, in any event, exclusively as a result of the application of the contested provisions, since intervention on the part of the Portuguese authorities is confined to the possibility of reducing the effects of that alleged opening with regard to vessels registered in the ports of the Azores.
39 Contrary to the submissions of the applicant, therefore, the provisions at issue do not constitute a decision within the meaning of Article 249 EC. It is therefore necessary to examine whether, notwithstanding the general application of the contested provisions, the applicant may nevertheless be considered to be directly and individually concerned by them. It is clear from case-law that the fact that an act is of general application does not prevent it from being of direct and individual concern to certain natural or legal persons within the meaning of the fourth paragraph of Article 230 EC (Case C‑309/89 Codorníu v Council [1994] ECR I‑1853, paragraph 19, and Case C‑452/98 Nederlandse Antillen v Council [2001] ECR I‑8973, paragraph 55).
40 In any event, even if the applicant’s arguments disputing the legislative nature of the contested provisions were well founded, that would not relieve the applicant of the obligation to show also that it is directly and individually concerned by the decision whose existence it alleges. As the applicant itself admits, that decision would not be addressed to it, but to the Kingdom of Spain and the Portuguese Republic.
B – Whether the applicant is directly and individually concerned
41 Since the parties devote most of their arguments to the question whether the applicant is individually concerned, it is appropriate to examine that aspect first.
42 According to settled case-law, for natural and legal persons to be regarded as individually concerned by a measure of general application, it must affect their legal position by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Case C‑321/95 P Greenpeace Council and Others v Commission [1998] ECR I‑1651, paragraph 7; and Nederlandse Antillen v Council, cited in paragraph 39 above, paragraph 60).
43 The applicant’s first submission in response to the arguments of the Council and the interveners that it is not individually concerned by the contested provisions is that it is individually concerned by all the contested provisions for the following reasons: (i) as an outermost region of the European Union, it is entitled to specific protection under Article 299(2) EC, which it should be able to defend before the Community judicature in cases, such as the present, where the contested act has been adopted in breach of that article; (ii) the environmental and economic impact of the contested provisions is more serious on its territory than on the territories of the other regions concerned, in particular Madeira and the Canary Islands; and (iii) because of the effects on the applicant of Article 5(1) EC. Next, the applicant submits that it is, in any event, individually concerned by Articles 3, 11, 13(b) and 15 the contested Regulation, and by the Annex thereto, owing to their effects on its legislative and executive powers over fishing for demersal and deep-sea species and on its ability to exercise those powers. Finally, the applicant and SWG both submit that the action should be declared admissible because of the absence of other remedies and the obligations of the Community under the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘the Aarhus Convention’), approved by Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Aarhus Convention (OJ 2005 L 124, p. 1).
44 It is appropriate to reject at the outset the argument regarding the effects on the applicant of Article 5(1) of the contested Regulation. By that argument, the applicant submits essentially that all the contested provisions form part of the decision allegedly contained in Article 5(1) of the contested Regulation, ordering the Portuguese Republic to open the waters of the Azores without appropriate protection, and that that decision affects it, the applicant, individually since, by virtue of the Portuguese Constitution, it is the national authority competent to apply it. However, the examination of the legal nature of the contested provisions carried out in paragraphs 35 to 39 above discloses that those provisions do not constitute a decision within the meaning of Article 249 EC and that the alleged opening of the waters of the Azores, assuming it to be established, follows exclusively as a result of the application of the contested provisions, without there being any obligation thereunder for the Portuguese authorities to act.
45 It is appropriate to examine separately each of the other sets of arguments put forward by the applicant.
1. The specific protection granted to the outermost regions under Article 299(2) EC and the environmental and economic impact of the contested provisions on the territory of the applicant
a) Arguments of the parties
46 First, the applicant points out that Article 299(2) EC provides that the Council is to adopt specific measures for the outermost regions, taking into account the special characteristics and constraints of those regions, inter alia in respect of fisheries, and submits that, in view of the fact that it is entitled to specific protection under that provision, it is individually concerned pursuant to the case-law, according to which the fact that a person benefits from specific protection under Community law is such as to distinguish him from all other persons and render him individually concerned within the meaning of the fourth paragraph of Article 230 EC (Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraph 28; Case C‑142/00 P Commission v Nederlandse Antillen [2003] ECR I‑3483, paragraph 72; Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission [1995] ECR II‑2305, paragraph 67; and Case T‑47/00 Rica Foods v Commission [2002] ECR II‑113, paragraph 41). The applicant submits that refusing the right of the outermost regions to bring legal proceedings to ensure that the special rights granted to them by Article 299(2) EC are applied and observed would render that provision nugatory, since it is not certain that the Member States would ensure that the prerogatives of the outermost regions were respected. Consequently, the applicant claims, the Court of First Instance should recognise that those regions have the capacity to bring an action to the extent necessary to safeguard their prerogatives under Article 299(2) EC (see, to that effect, Case C‑70/88 Parliament v Council [1990] ECR I‑2041).
47 The applicant maintains that, contrary to the Council’s contentions, that argument does not have the effect of giving any outermost region the right to challenge every regulation which might have an impact on its territory. In the submission of the applicant, the rights which Article 299(2) EC gives to those regions have a much narrower scope in that it gives them only the right to challenge provisions adopted by reference to or inconsistent with Article 299(2) EC. In that regard, the applicant submits that, in the present case, the contested provisions infringe Article 299(2) EC in that they will lead to the collapse of the fishing sector in the Azores and will therefore fail to protect that region.
48 Secondly, the applicant asserts that the waters of the Azores contain unique ecosystems and deep-sea species which were protected against exploitation by the 1995 Regulations. Consequently, the repeal of those regulations by Article 15 of the contested Regulation and the application of the other contested provisions will have more serious consequences for the environment in the waters of the Azores than in other areas affected, including Madeira and the Canary Islands.
49 Finally, the applicant claims that its situation is different from that of the other outermost regions affected by the contested Regulation – that is to say, Madeira and the Canary Islands – in that its dependence on the fishing sector is much greater. Since application of the contested provisions will have the effect of compromising the durability and survival of the fishing sector in the Azores, the applicant maintains that it is individually concerned by those provisions.
50 SWG supports the applicant’s arguments with regard to the highly distinctive nature of the marine environment of the Azores in comparison with other regions of the European Union and, in particular, with Madeira and the Canary Islands.
51 The Council, the Commission and the Kingdom of Spain challenge those arguments.
b) Findings of the Court
52 The first set of arguments put forward by the applicant in support of the admissibility of its action rests, in essence, on the premiss that the contested provisions will have harmful effects on the marine environment specifically in the Azores and, consequently, also on the economy of the region. According to the applicant, damage will be caused to the environment of the Azores as a result of the fact that, under the contested provisions: (i) trawling is permitted and the waters of the Azores are opened up to fishing for deep-sea species; (ii) Spanish vessels are permitted to fish for tuna and tuna-like species in part of the waters of the Azores; (iii) use of the notification system is terminated; and (iv) it is possible that there will be a legal vacuum during the period between the date of repeal of the 1995 Regulations and the entry into force of the new limits on the fishing effort.
53 It is appropriate to note that the general interest that a region, as the body competent for economic, social or environmental matters in its territory, may have in obtaining an outcome conducive to the prosperity of that territory cannot, of itself, be sufficient for that region to be regarded as concerned within the meaning of the fourth paragraph of Article 230 EC. It is clear from the case-law that, under the system established by the Treaties, the Member States – and not regional authorities or associations, whether public or private – have the right to defend the general interest in their territories and that, accordingly, natural or legal persons acting under the fourth paragraph of Article 230 EC may not, in order to show that they are individually concerned by a Community act, rely only on the consequences of the act at issue on the collectivity or the entirety of their members. Thus, it has been held that an organisation formed for the protection of the collective interests of a category of persons cannot be regarded as directly and individually concerned by a measure affecting the general interests of that category and, in consequence, is not entitled to bring an action for annulment where its members cannot do so individually (Joined Cases 19/62 to 22/62 Fédération nationale de la boucherie en gros and Others v Council [1962] ECR 491, 499; Case 72/74 Union syndicale and Others v Council [1975] ECR 401, paragraph 17; and Case 282/85 DEFI v Commission [1986] ECR 2469, paragraph 16; order of the Court of First Instance in Case T‑585/93 Greenpeace and Others v Commission [1995] ECR II‑2205, paragraph 59). Since, for the purposes of applying the fourth paragraph of Article 230 EC, the conditions on which actions brought by regional authorities may be held to be admissible are no different from those for actions brought by associations set up to defend the collective interests of their members, that case-law is also applicable to actions brought by regional authorities (see, to that effect, the orders of the Court of First Instance in Case T‑238/97 Comunidad Autónoma de Cantabria v Council [1998] ECR II‑2271, paragraphs 48 to 50, and Case T‑609/97 Regione Puglia v Commission and Spain [1998] ECR II‑4051, paragraphs 21 and 22).
54 That case-law also runs counter to the applicant’s arguments regarding Article 299(2) EC. Even if that provision could be interpreted not only as permitting the Council to provide for derogations specific to the outermost regions but also as requiring it to adopt such derogations or, at the very least, as prohibiting the Council from adopting measures which would exacerbate the disadvantages suffered by those regions, the protection which it gives is not sufficient to establish that the applicant is individually concerned by the contested provisions (see, to that effect, Nederlandse Antillen v Council, cited in paragraph 39 above, paragraphs 70 to 72, and Commission v Nederlandse Antillen, cited in paragraph 46 above, paragraphs 74 to 76).
55 Thus, it follows from Nederlandse Antillen v Council, cited in paragraph 39 above, that the fact that a regional authority is entitled to specific protection under Community law is not sufficient to give it standing to bring proceedings for the purposes of the fourth paragraph of Article 230 EC. In the case which gave rise to that judgment, the Court of Justice rejected the applicants’ arguments to the effect that the action was admissible because they were expressly mentioned in the Treaty and accordingly constituted a restricted group and, by analogy with the position of the European Parliament, should have the right to bring an action where the purpose of that action is to protect the prerogatives granted to them by the Treaty (paragraphs 47 and 48). First, the Court of Justice held that the applicants’ arguments did not enable the action to be declared admissible on the basis of the second and third paragraphs of Article 230 EC and that, consequently, the applicants had to show that they were directly and individually concerned by the regulations at issue. The Court of Justice went on to examine whether that was the position in the case before it and reached a negative conclusion. The Court of First Instance notes that the Court of Justice thus held – implicitly, but necessarily – that the applicants’ arguments based on the protection granted to them under the Treaty or other provisions of Community law were not sufficient to show that the applicants were directly and individually concerned.
56 With regard to the argument based on Piraiki-Patraiki and Others v Commission, cited in paragraph 46 above, it should be recalled that in Commission v Nederlandse Antillen (cited in paragraph 46 above, paragraphs 74 to 76), the Court of Justice held that a finding of the existence of an obligation to take account of the position of certain regions or undertakings cannot suffice to establish that they are individually concerned within the meaning of the fourth paragraph of Article 230 EC.
57 In any event, in the circumstances of the present case, it appears appropriate to examine whether the contested provisions entail harmful consequences, as the applicant alleges.
The alleged damage to the environment from trawling and the opening of the waters of the Azores to fishing for deep-water species
58 The applicant claims that Articles 3, 11 and 15 of the contested Regulation, together with the Annex thereto, will have the effect, first, of increasing the fishing effort for deep-sea species and, second, of permitting trawling for the first time in the waters of the Azores. With regard specifically to the increase in the fishing effort for deep-sea species, it submits that, following the removal of the limit on the fishing effort specific to the Azores for deep-sea species, vessels flying the flag of other Member States will now be able to deploy in the waters of the Azores part of the fishing effort which they are authorised to deploy under Regulation No 2347/2002 and which, previously, they could deploy only in other areas. With regard to the authorisation of trawling, the applicant asserts that this flows from the combination of various measures provided for in the contested Regulation: (i) the removal of the prohibition applying to the waters of the Azores under the 1995 Regulations; (ii) the possibility for non-Portuguese vessels to fish in those waters; and (iii) the fact that, pursuant to Article 9 of the contested Regulation, the applicant does not have the right to impose on those vessels its own rules prohibiting trawling.
59 The applicant maintains that, in consequence, given the sensitivity of deep-sea species to any increase in fishing activities affecting them and the highly sensitive nature of the marine environment of the Azores, there is a danger that the abovementioned provisions will bring about irreparable damage to the waters of the Azores.
60 In that regard, it should be noted that the applicant bases its two grounds of challenge on the allegation that non-Portuguese vessels will be able to fish for deep-sea species in the waters of the Azores. However, although it is true that the contested provisions do not prohibit vessels flying the flag of other Member States from fishing for deep-sea species in the waters of the Azores, removing the de facto prohibition previously existing, the fact remains that those provisions manifestly do not expressly authorise those vessels to do so. Consequently, the fact that it is possible for those vessels to fish for deep-sea species in the Azores, if established, does not follow from the actual content of the contested provisions but from the fact that there are no longer any provisions of Community legislation which prohibit them from doing so. The effects alleged by the applicant are therefore not those of the contested provisions alone, but those of Community legislation, taken as a whole. Thus, in reply to a question from the Court at the hearing, the applicant acknowledged that if the contested Regulation contained a provision prohibiting trawling in the waters of the Azores, it would not seek annulment of the contested provisions on grounds related to trawling.
61 In any event, it is not apparent from the documents before the Court that non-Portuguese vessels will be able to fish for deep-sea species in the waters of the Azores. It should be noted that the applicant has itself confirmed, in reply to the written questions put by the Court, that demersal and deep-sea species are fished together and that that prevented it from informing the Court of the fishing effort carried out specifically in respect of deep-sea species. The Kingdom of Spain also asserted, with regard to one of the two species which it mentioned, that that species is fished together with other species. It is appropriate to note that, by fixing as a reference period for assessment of the fishing effort a period during which it is not disputed that only Portuguese vessels could fish for demersal species in the waters of the Azores, Article 3 of the contested Regulation allocates to the Portuguese Republic the entire fishing effort for demersal species other than deep-sea species. Accordingly, the fact that Article 3 of the contested Regulation provides that deep-sea species are to be excluded from the calculation of the fishing effort for the purposes of that Regulation does not – contrary to the applicant’s submissions – have the effect of permitting non-Portuguese vessels to fish for deep-sea species in the waters of the Azores, since those vessels cannot fish there for demersal species and deep-sea species cannot be fished separately from demersal species.
62 Furthermore, that interpretation is confirmed by the fact that, in accordance with the Commission’s assertions, which are not disputed by the applicant, no Member State other than the Portuguese Republic has declared fishing effort for deep-sea species in the area of the Azores since the entry into force of the contested Regulation. Although the applicant states that Spanish vessels have been sighted in the waters of the Azores, it is appropriate to note that, apart from the fact that the applicant has not produced evidence in that regard, the applicant itself takes the view that those vessels were probably fishing for swordfish, hence not for deep-sea species.
63 In those circumstances, it must be held that the applicant has failed to show that Articles 3, 11 and 15 of the contested Regulation, together with the Annex thereto, entail the opening of fishing for deep-sea species in the waters of the Azores to vessels flying the flag of Member States other than the Portuguese Republic. Since its two grounds of challenge concerning those provisions are based on that alleged opening of fishing for deep-sea species, the rejection of that argument entails the dismissal of those grounds of challenge. Consequently, it must be held that the applicant has failed to show that Articles 3, 11 and 15 of the contested Regulation, together with the Annex thereto, were likely to harm the environment and fish stocks by virtue of the fact that they opened the waters of the Azores to vessels flying the flag of other Member States without limiting their fishing effort or prohibiting their use of trawling.
The effects of the repeal of the prohibition on Spanish vessels from fishing for tuna and tuna-like species in the waters of the Azores
64 The applicant notes that Articles 5(1) and 15 of the contested Regulation have the effect of permitting Spanish vessels fishing for tuna and tuna-like species to do so in that part of the waters of the Azores which, pursuant to Article 5(1), is not reserved to vessels from those islands and argues that, accordingly, those articles will have harmful consequences for the marine environment in the region. It submits that those provisions do not protect the waters of the Azores, that they partially remove the protection from which the species in question benefit, since their migratory nature will not be sufficient to prevent local over-fishing because of a phenomenon known as ‘viscosity’, and that they will entail an increase in the fishing effort in the 100-mile zone, reserved under Article 5(1) of the contested Regulation to fishermen from the Azores, because the latter, being unable to fish in the area where the Spanish vessels fish because of interference between fishing gear, will be obliged to concentrate their fishing effort in that 100-mile zone.
65 However, the Court considers that, since the species at issue are migratory species which move about the ocean, the prohibition on access to the waters of the Azores laid down in Regulation No 685/95 with regard to Spanish vessels could not serve to protect those species since those vessels could lawfully fish for them outside the limits of those waters. That finding is confirmed – notwithstanding the applicant’s imprecise assertions concerning the phenomenon known as ‘viscosity’ – by the fact that the management of stocks of the species concerned is entrusted, precisely because of their migratory nature, to the International Commission for the Conservation of Atlantic Tunas (ICCAT), which fixes the TACs for large areas of the ocean and which has not taken the view that it was necessary to establish a specific TAC for the waters of the Azores or to prohibit access to those waters to vessels flying the flag of certain States. Moreover, the applicant itself states, in response to the arguments of the Council and the Commission concerning the discriminatory nature of the measure, that that prohibition was the result of an agreement between the Kingdom of Spain and the Portuguese Republic and not of a Community decision, which would have been adopted out of a concern to protect the species in question.
66 With regard to the argument that the fishing gear used by the Spanish vessels obliges vessels from the Azores fishing for demersal and deep-sea species to withdraw inside the 100-mile zone, thus increasing the fishing effort in that area, it should be noted that, as SWG submitted at the hearing, the problem of fishing gear is not linked to the vessels’ flag and the exclusion of Spanish vessels from the waters of the Azores is not guaranteed to ensure the protection of demersal and deep-sea species, since the same fishing gear is used by Portuguese vessels from mainland Portugal.
67 In those circumstances, it must be held that the arguments put forward by the applicant do not enable it to be held that Articles 5(1) and 15 of the contested Regulation are likely to harm the fish stocks in the waters of the Azores because they permit Spanish vessels access to those waters.
The effects of terminating use of the notification system
68 The applicant submits that the termination, provided for in Article 13(b) of the contested Regulation, of use of the notification system in the Azores will hinder control of fishing activities, delay research and endanger conservation. First, it submits that the satellite tracking system currently used in the Azores for locating vessels, the VMS system, which should enable the position of a vessel to be identified at any given time, has a number of practical shortcomings as a result of which vessels flying the flag of other Member States can be monitored only once every 24 hours. In addition, it cannot, in any event, monitor some of the vessels fishing for deep-sea species in the Azores – that is to say, small vessels not flying the Portuguese flag – because, in the first place, owing to their comparatively small size, those vessels are not required under the Community rules to be equipped with a VMS system and, secondly, the applicant does not have the right to impose additional obligations on such vessels which would enable their activities to be monitored, since, under Article 9 of the contested Regulation, it can adopt such measures only with regard to vessels flying the Portuguese flag. Secondly, the applicant submits that the notification system, used in combination with the vessels’ logbooks, enabled it to assess the catches unloaded; it also enabled observers on vessels based in the Azores to gather a considerable quantity of information on fishing in the waters of the Azores, and on the catches; in the future, the applicant will no longer be in a position to obtain that information.
69 With regard to the first allegation, it is sufficient to note that – despite the fact that the Commission strongly disputes the truth of the applicant’s assertion – the applicant does not put forward the slightest evidence to show that the VMS system has shortcomings which make it impossible to identify the position of vessels at any given time. With regard to the fact that it is not possible to identify the position of small non-Portuguese vessels fishing in the Azores, it should be recalled that, as is apparent from the examination carried out in paragraphs 61 to 63 above, the applicant has not succeeded in showing that the contested Regulation actually entails the opening of fishing for deep-sea species in the Azores to vessels flying the flag of other Member States. In any event, the fact remains that both the Kingdom of Spain and the Commission assert, without the applicant having submitted evidence to the contrary, that the vessels which, owing to their small size, are not required to be equipped with the VMS system are also unable – precisely because of their size – to cross the ocean as far as the Azores from other regions.
70 With regard to the second allegation, it should be observed that both Regulation No 2847/93 and Regulation No 2347/2002 require vessels to note the details of their catches in their logbook (species caught, date, location and gear used, species kept on board) and to communicate that information to the competent authorities of the State of unloading (Article 6(1) and (2), and Article 8(1) of Regulation No 2847/93 and Article 5 of Regulation No 2347/2002). Article 15 of Regulation No 2847/93 requires the Member States to send that information to the Commission and provides that the Commission is to keep the notifications which it has received available to Member States on computer. Consequently, the fact that the VMS system does not by itself enable the detail of catches to be known is of no consequence for research and conservation, because other mechanisms make it possible for the Community and the Member States to obtain the information necessary for the management of stocks.
71 It follows that the applicant’s arguments do not enable it to be held that Article 13(b) of the contested Regulation will have the effect of hindering control of fishing activities, or of delaying research and endangering conservation; nor, accordingly, can it be held that that article will have harmful consequences for the environment of the Azores and on fish stocks.
The effects of a possible period during which there is a legal vacuum
72 The applicant submits that Article 15 of the contested Regulation makes it possible for there to be a period of time during which there is a legal vacuum, throughout which fishing in the waters of the Azores will not be subject to any restrictions, in that it provides that the 1995 Regulations are to be repealed on 1 August 2004 at the latest, notwithstanding the fact that the Regulation fixing the new limits for the fishing effort, adoption of which is provided for in Article 11 of the contested Regulation, is not in force at that date. The applicant maintains that, given the highly sensitive nature of the environment and the species present in the waters of the Azores, that legal vacuum may have devastating effects.
73 In that regard, suffice it to note that, contrary to the applicant’s submissions, Article 3(1)(b) of the contested Regulation requires the Member States to limit the fishing effort of their fleets in accordance with Article 3(1)(a), irrespective of the date of entry into force of the Regulation fixing the limits for the fishing effort. In fact, Article 3(1)(b) would be rendered ineffective if, as the applicant claims, it were solely by virtue of the entry into force of the Regulation provided for in Article 11 of the contested Regulation that the Member States would be required to limit the fishing effort of vessels flying the flag of those States.
74 That interpretation is confirmed, inter alia, by Article 8(1) of the contested Regulation, which provides that ‘[t]he Member States shall take the necessary measures to regulate the fishing effort where the fishing effort corresponding to free access for fishing vessels … exceeds the allocated effort’. Thus, it follows from that provision that, contrary to the applicant’s assertion at the hearing, the contested Regulation requires the Member States to limit the fishing effort not only of vessels equal to or less than 15 metres in length overall (Article 4(3) of the contested Regulation) but also of vessels authorised to fish pursuant to Article 3 of that regulation.
75 With regard to the date on which the measures to limit fishing effort were to be adopted, clearly, pursuant to Article 10 of the contested Regulation, entitled ‘Notification’, Member States were required to notify the Commission, before 30 November 2003, of the list of vessels authorised to fish in accordance, inter alia, with Article 3 of the contested Regulation, the assessment of the fishing effort carried out in accordance with that provision and the fishing effort regulation measures referred to in Article 8 of the contested Regulation. In those circumstances, it must be recognised that the contested Regulation contains provisions ensuring that the assessment and allocation of fishing effort for each Member State and the adoption of measures to ensure compliance with the fishing effort allocated were finalised and notified to the Commission well before 1 August 2004.
76 That conclusion is not invalidated by the fact that Article 11 of the contested Regulation provides for the adoption of a later regulation fixing the limits of fishing effort for each Member State. The aim of that later regulation is not to establish a limit on the fishing effort which does not follow from other provisions of the contested Regulation, but to ensure, in accordance with recital 8 in the preamble to that regulation (see paragraph 13 above), transparency and equity of management and monitoring procedures chosen by all Member States pursuant to their powers to adopt measures seeking to regulate the fishing effort of vessels flying the flag of those States.
77 In those circumstances, it must be held that the applicant has failed to show that the repeal of the 1995 Regulations on a date prior to that of the entry into force of the regulation fixing the new limits on the fishing effort makes it possible for there to be a period of legal vacuum likely to harm the environment of the waters of the Azores.
Conclusion on the effects of the contested provisions
78 It follows from all the foregoing that the applicant has not put forward arguments which enable it to be held that the contested provisions will entail harmful effects for the fish stocks and for the marine environment in the Azores and, consequently, for the survival of the fishing sector in the region.
2. The effect of certain provisions of the contested Regulation on the legislation adopted by the applicant relating to fishing for deep-sea species and on the applicant’s ability to exercise its legislative and executive powers in that regard
a) Arguments of the parties
79 First, the applicant submits that Articles 3, 11 and 15 of the contested Regulation, together with the Annex thereto, encroach upon its legislative and executive powers within the meaning of the case-law (Case T‑214/95 Vlaamse Gewest v Commission [1998] ECR II‑717 and Joined Cases T‑132/96 and T‑143/96 Freistaat Sachsen and Others v Commission [1999] ECR II‑3663) in that, by authorising vessels not subject to the applicant’s legislation to fish in the waters of the Azores, they reduce the scope of the measures for management of fishing for deep-sea species which it has adopted on the basis of its own powers, reduce the efficiency of those measures and prevent the applicant from applying to all vessels fishing in the Azores the measures which it may consider necessary to adopt in the future. The applicant submits that none of the other regions concerned, and in particular the outermost regions, has adopted similar measures whose effectiveness is affected by the contested provisions and, accordingly, maintains that it is in a factual situation which distinguishes it from the others. It submits that its situation in that regard is comparable to that of the applicant in the case which gave rise to the judgment in Codorníu v Council, cited in paragraph 39 above.
80 Secondly, the applicant submits that Article 13(b) of the contested Regulation encroaches upon its powers in that, by terminating use of the notification system in the waters of the Azores, it compromises its ability to exercise those powers correctly and prevents it from ensuring that illegal fishing activity does not take place in the waters of the Azores.
81 The Council, the Commission and the Kingdom of Spain challenge those arguments.
b) Findings of the Court
82 In the Community legal order, it is for the authorities of the central State to represent any interests based on the defence of national legislation, regardless of the constitutional form or the territorial organisation of that State (order in Case T‑417/04 Regione Autonoma Friuli-Venezia Giulia v Commission [2007] ECR II‑641, paragraph 62). Admittedly, the Community judicature has accepted the right of regional authorities to challenge Community acts which either prevent them from adopting measures which they may legitimately adopt if there is no Community intervention or require them to withdraw those measures and to take certain action (see, to that effect, Vlaamse Gewest v Commission, cited in paragraph 79 above, paragraph 29; Joined Cases T‑346/99 to T‑348/99 Diputación Foral de Álava and Others v Commission [2002] ECR II‑4259, paragraph 37; and Joined Cases T‑366/03 and T‑235/04 Land Oberösterreich and Austria v Commission [2005] ECR II‑4005, paragraph 28). Clearly, however, that case-law does not apply in the present case. Whilst, in the cases referred to by the applicant, the contested decisions specifically concerned aid paid by the applicant local bodies, so that the lawfulness of that aid depended on the outcome of the proceedings, in the present case, the contested provisions of the contested Regulation do not concern legislative or regulatory measures adopted by the applicant and their lawfulness is in no way called into question or compromised, which means that the applicant may continue to apply them.
83 Since the applicant submits that Articles 3, 11 and 15 of the contested Regulation, together with the Annex thereto, prevent it from applying to all vessels fishing in the Azores its legislation concerning fishing for deep-sea species, thus reducing the effectiveness of that legislation, it is sufficient to recall that the examination carried out in paragraphs 61 to 63 above discloses that the applicant has failed to show that the contested Regulation entailed that non-Portuguese vessels – and, consequently, vessels not subject to its legislation – could fish for deep-sea species in the waters of the Azores. Accordingly, that argument cannot be accepted.
84 In any event, as the applicant itself implicitly recognises, before the entry into force of the contested Regulation, the applicant clearly did not have the right to apply its legislation to all vessels fishing in the waters of the Azores even though, in practice, it was able to do so. The Community legislation applicable before and after that entry into force, in particular Article 10 of Regulation No 2371/2002, permits the Member States to lay down additional management measures only with regard to vessels flying the flag of those States. The fact that the concomitant application of that rule and of the provisions allocating to the Portuguese Republic all the fishing effort available in the Azores had the result of enabling the applicant, in practice, to apply its legislation to all vessels fishing in the waters of the Azores does not change the scope of the powers that Article 10 of Regulation No 2371/2002 confers on the national authorities. Consequently, even supposing that the contested Regulation opened fishing for deep-sea species in the Azores to vessels flying the flag of Member States other than the Portuguese Republic, it cannot be accepted that the scope of the measures adopted by the applicant for managing the fishing of deep-sea species was thereby reduced. In those circumstances, the case-law relied on by the applicant cannot apply.
85 In so far as the applicant submits that the termination of use of the notification system in respect of the Azores, provided for in Article 13(b) of the contested Regulation, deprives it of access to a great deal of information enabling it correctly to exercise its powers of fishing management and prevents it from ensuring that illegal fishing activities do not take place in the waters of the Azores, it should be noted that, even if that could be regarded as encroaching upon the applicant’s powers within the meaning of case-law, the non-applicability of that system in the waters of the Azores is without consequence for the applicant’s ability to exercise its management and monitoring powers since, in accordance with Article 9 of the contested Regulation, the applicant may impose on Portuguese vessels any obligations which it considers necessary, such as a system analogous to the notification system, and the examination carried out in paragraphs 61 to 63 above makes it clear that vessels flying the flag of other Member States cannot fish for deep-sea species in the waters of the Azores. In any event, since the efficiency of the notification system depends entirely on the willingness of the masters of vessels to fulfil their obligations and therefore to communicate their presence in the waters of the Azores, it must be acknowledged that that system is no more reliable than the VMS system in terms of enabling the applicant to combat illegal fishing, since vessels carrying out illegal activities will not communicate their presence in the waters of the Azores to the competent authorities.
86 In the light of the foregoing, it must be held that the applicant has failed to show that Articles 3, 11, 13(b) and 15 of the contested Regulation, together with the Annex thereto, prevented it from exercising its powers or compromised its ability to do so.
87 In those circumstances, it must be held that the applicant does not adduce any arguments enabling it to be regarded as individually concerned by Articles 3, 11, 13(b) or 15 of the contested Regulation, or by the Annex thereto, by reason of the fact that those provisions encroached upon its powers.
88 It follows from all the foregoing that the applicant has not succeeded in establishing that its legal position was impaired by the contested provisions because of certain qualities peculiar to it or a factual situation which distinguished it from all other persons, thus concerning it individually within the meaning of the fourth paragraph of Article 230 EC.
3. The lack of other effective remedies and the obligations on the Community under the Aarhus Convention
a) Arguments of the parties
89 The applicant submits that, in any event, its action should be declared admissible on the ground that the only effective remedy available to it is an action for annulment before the Community judicature. It maintains that an indirect remedy by way of a reference for a preliminary ruling to determine the lawfulness of the contested Regulation is not an adequate alternative, since, in order to commence legal proceedings likely to give rise to a reference for a preliminary ruling, it would be obliged to arrest vessels operating in the waters of the Azores pursuant to the contested provisions and to show that those vessels were exercising their activities unlawfully under provisions which should be annulled. Furthermore, the applicant states that a reference for a preliminary ruling does not enable it to obtain the provisional suspension of operation of the contested provisions.
90 SWG notes that Article 9(3) of the Aarhus Convention provides that ‘each [contracting] Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’. SWG submits that the Court should interpret the fourth paragraph of Article 230 EC in such a way as to render it compatible with that provision.
91 The Council, the Commission and the Kingdom of Spain challenge those arguments.
b) Findings of the Court
92 With regard to the applicant’s argument that the action should be declared admissible on the ground that the only effective remedy is an action for annulment before the Community judicature, it should be recalled that, in accordance with established case-law, the requirement for effective judicial protection cannot lead to the setting aside of the condition laid down in the fourth paragraph of Article 230 EC that a person be individually concerned (Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 44, and Case C‑263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraph 36; order in Regione Autonoma Giulia v Commission, cited in paragraph 82 above, paragraph 67). The EC Treaty – by Articles 230 and 241, on the one hand, and Article 234, on the other – has established a complete system of remedies and procedures intended to ensure control of the lawfulness of the acts of the institutions by entrusting it to the Community judicature. In that system, direct control of the lawfulness of Community acts of general application is entrusted to the Member States and to the Community institutions. Since other subjects of law, regional authorities of the Member States included, cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 230 EC, directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the unlawfulness of such acts before the Community judicature under Article 241 EC or to do so before the national courts and ask them, since they have no jurisdiction themselves to declare those measures unlawful, to make a reference to the Court of Justice for a preliminary ruling as to lawfulness (Unión de Pequeños Agricultores v Council, cited in paragraph 40 above, and order in Case T‑142/03 Fost Plus v Commission [2005] ECR II‑589, paragraph 75). While it is, admittedly, possible to envisage a system of judicial review of the legality of Community measures of general application different from that established by the founding Treaty and never amended as to its principles, it is for the Member States, if necessary, in accordance with Article 48 EU, to reform the system currently in force (Unión de Pequeños Agricultores v Council, cited in paragraph 45 above, and Fost Plus v Commission, cited in paragraph 78 above). Consequently, that argument must be rejected.
93 Next, with regard to SWG’s argument concerning the Aarhus Convention, it should be noted that that Convention had not been approved by the Community when the present action was brought – the date by reference to which admissibility falls to be assessed – and that Decision 2005/370 approving that Convention has not provided for its retroactive application. In addition, it should be recalled that Article 9(3) of the Aarhus Convention refers expressly to ‘the criteria, if any, laid down in [the] national law’ of the contracting parties which are laid down, with regard to actions brought before the Community judicature, in Article 230 EC. Although it is true that the conditions for admissibility laid down in that provision are strict, the fact remains that the Community legislature adopted, in order to facilitate access to the Community judicature in environmental matters, Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention (OJ 2006 L 264, p. 13). Title IV (Articles 10 to 12) of that regulation lays down a procedure on completion of which certain non-governmental organisations may bring an action for annulment before the Community judicature under Article 230 EC. Since the conditions laid down in Title IV of that regulation are manifestly not satisfied in the present case, it is not for the Court to substitute itself for the legislature and to accept, on the basis of the Aarhus Convention, the admissibility of an action which does not meet the conditions laid down in Article 230 EC. That argument, also, must therefore be rejected.
94 In the light of the foregoing, the action must be dismissed as inadmissible, since the applicant is not individually concerned by the contested provisions, without its being necessary to determine whether it is directly concerned thereby.
Costs
95 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those incurred in the interim proceedings, in accordance with the form of order sought by the Council.
96 In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the Kingdom of Spain and the Commission, interveners, must bear their own costs, including those incurred in the interim proceedings.
97 In accordance with the third paragraph of Article 87(4) of the Rules of Procedure, Seas at Risk and WWF, applicants for leave to intervene in the interim proceedings and interveners in the present proceedings, must bear their own costs, including those incurred in the interim proceedings. Stichting Greenpeace Council, intervener in the present proceedings, must bear its own costs. Porto de Abrigo – Organização de Produtores da Pesca CRL and GÊ-Questa – Associação de Defesa do Ambiente, interveners in the interim proceedings, must bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby:
1. Dismisses the action as inadmissible;
2. Orders Região autónoma dos Açores to bear its own costs and pay those of the Council, including those incurred in the interim proceedings;
3. Orders the Kingdom of Spain and the Commission to bear their own costs, including those incurred in the interim proceedings;
4. Orders Seas at Risk VZW and WWF – World Wide Fund for Nature to bear their own costs, including those incurred in the interim proceedings;
5. Orders Stichting Greenpeace Council to bear its own costs as incurred in the present proceedings;
6. Orders Porto de Abrigo – Organização de Produtores da Pesca CRL and GÊ-Questa – Associação de Defesa do Ambiente to bear their own costs as incurred in the interim proceedings.
Delivered in open court in Luxembourg on 1 July 2008.
Table of contents
Legal context
A – Earlier legislation
B – The contested Regulation
Procedure
Forms of order sought
Admissibility
A – The legal nature of the contested provisions
1. Arguments of the parties
2. Findings of the Court
B – Whether the applicant is directly and individually concerned
1. The specific protection granted to the outermost regions under Article 299(2) EC and the environmental and economic impact of the contested provisions on the territory of the applicant
a) Arguments of the parties
b) Findings of the Court
The alleged damage to the environment from trawling and the opening of the waters of the Azores to fishing for deep-water species
The effects of the repeal of the prohibition on Spanish vessels from fishing for tuna and tuna-like species in the waters of the Azores
The effects of terminating use of the notification system
The effects of a possible period during which there is a legal vacuum
Conclusion on the effects of the contested provisions
2. The effect of certain provisions of the contested Regulation on the legislation adopted by the applicant relating to fishing for deep-sea species and on the applicant’s ability to exercise its legislative and executive powers in that regard
a) Arguments of the parties
b) Findings of the Court
3. The lack of other effective remedies and the obligations on the Community under the Aarhus Convention
a) Arguments of the parties
b) Findings of the Court
Costs