ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)
9 January 2007 (*)
(Action for annulment – Regulation (EC) No 2269/2004 and Regulation (EC) No 2270/2004 – Fisheries – Fishing opportunities for deep sea species for the new Member States which acceded in 2004 – Persons directly and individually concerned – Inadmissibility)
In Case T-127/05,
Lootus Teine Osaühing (Lootus), established in Tartu (Estonia), represented by T. Sild and K. Martin, lawyers,
applicant,
supported by
Republic of Estonia, represented by L. Uibo and H. Prieß, acting as Agents,
intervener,
v
Council of the European Union, represented by A. de Gregorio Merino, F. Ruggeri Laderchi and A. Westerhof Lörefflerova, acting as Agents,
defendant,
supported by
Commission of the European Communities, represented by K. Banks, acting as Agent,
intervener,
ACTION for annulment in part of, first, the Annex to Council Regulation (EC) No 2269/2004 of 20 December 2004 amending Regulations (EC) Nos 2340/2002 and 2347/2002 as concerns fishing opportunities for deep sea species for the new Member States which acceded in 2004 (OJ 2004 L 396, p. 1) and, second, Part 2 of the Annex to Council Regulation (EC) No 2270/2004 of 22 December 2004 fixing for 2005 and 2006 the fishing opportunities for Community fishing vessels for certain deep-sea fish stocks (OJ 2004 L 396, p. 4), in so far as those provisions concern the fishing opportunities allocated to Estonia,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fourth Chamber),
composed of H. Legal, President, I. Wiszniewska-Białecka and E. Moavero Milanesi, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 The Council adopted Regulation (EC) No 2269/2004 of 20 December 2004 amending Regulations Nos 2340/2002 and 2347/2002 as concerns fishing opportunities for deep sea species for the new Member States which acceded in 2004 (OJ 2004 L 396, p. 1).
2 The Council also adopted Regulation (EC) No 2270/2004 of 22 December 2004 fixing for 2005 and 2006 the fishing opportunities for Community fishing vessels for certain deep-sea fish stocks (OJ 2004 L 396, p. 4).
3 The Annex to Regulation No 2269/2004 (which fixes, for each Member State concerned, including Estonia, the fishing opportunities in 2004 for the black scabbardfish, the roundnose grenadier and the blue ling) and Part 2 of the Annex to Regulation No 2270/2004 (which fixes, for each Member State concerned, the fishing opportunities in 2005 and 2006 for certain deep-sea species, including, in respect of Estonia, the deep sea shark, the black scabbardfish, the roundnose grenadier and the blue ling) (‘the contested provisions’) are the subject of the present action.
4 The fishing opportunities provided for in those regulations were established in relation to Community and international marine areas defined by the International Council for the Exploration of the Sea (ICES).
5 The fishing quotas for deep-sea species allocated to Estonia by Regulations Nos 2269/2004 and 2270/2004 relate to fishing carried out in ICES areas V, Vb, VI, VII, VIII, IX and XII.
6 The applicant, an Estonian fishing company purporting to enjoy historic fishing rights for deep-sea fish, requested the Estonian authorities to issue to it a fishing permit for the second half of 2004 for deep-sea fish species on the basis of its historical fishing rights which had been confirmed to it by the Estonian fishing authorities in January 2004 in the form of 163 days of fishing. The Estonian fishing authorities refused it that permit on the ground that the Community had not yet allocated any deep-sea fishing opportunities to Estonia, Regulation No 2269/2004 having been adopted only on 20 December 2004. For 2005, the Estonian fishing authorities did allocate fishing rights to the applicant in the form of quotas in tonnes of catch equivalent to the fishing opportunities fixed for Estonia in Part 2 of the Annex to Regulation No 2270/2004.
7 By application lodged at the Registry of the Court on 24 March 2005, the applicant brought the present action.
8 By application lodged at the Registry of the Court on 20 June 2005, the Republic of Estonia applied for leave to intervene in support of the form of order sought by the applicant.
9 By application lodged at the Registry of the Court on 24 June 2005, the Commission applied for leave to intervene in support of the form of order sought by the Council.
10 By order of the President of the Fourth Chamber of the Court of First Instance of 6 September 2005, the Republic of Estonia and the Commission were granted leave to intervene.
11 By separate document, lodged at the Registry of the Court on 5 July 2005, the Council raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance.
12 On 14 September 2005, the applicant submitted its observations on that objection.
13 The Commission and the Republic of Estonia lodged their statements in intervention on 18 October 2005 and 19 October 2005 respectively.
14 On 8 February 2006, the applicant submitted its observations on the statements in intervention. The Council’s observations, submitted out of time on 15 February 2006, were not placed in the case file.
Forms of order sought
15 In its application the applicant claims that the Court should:
– annul the Annex to Regulation No 2269/2004, in so far as it concerns the fishing opportunities allocated to Estonia;
– annul Part 2 of the Annex to Regulation No 2270/2004, in so far as it concerns the fishing opportunities allocated to Estonia;
– order the Council to pay the costs.
16 In its objection of inadmissibility, the Council contends that the Court should:
– dismiss the action as manifestly inadmissible;
– order the applicant to pay the costs.
17 In its observations on the objection of inadmissibility, the applicant claims that the Court should:
– reject the objection of inadmissibility and declare the action admissible;
– order the Council to pay the costs.
18 In its statement in intervention, the Commission contends that the Court should:
– dismiss the action as manifestly inadmissible;
– order the applicant to pay the costs.
19 In its statement in intervention, the Republic of Estonia maintains that the application is admissible.
Law
20 Under Article 114(1) of the Rules of Procedure, the Court may rule on inadmissibility without going to the substance of the case, if one of the parties so requests. Under Article 114(3), the remainder of the proceedings is to be oral, unless the Court decides otherwise.
21 In the present case, the Court finds that it has sufficient information from documents in the file and will therefore rule without taking further steps in the proceedings.
22 Under the fourth paragraph of Article 230 EC, ‘[a]ny 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’.
23 The Council takes the view that the applicant is neither directly nor individually concerned by the contested provisions.
24 Since those two conditions must both be fulfilled, the Court considers that it is appropriate to examine first whether the applicant is directly concerned, since, if it is not, it would be otiose to consider whether it is individually affected by the contested provisions.
Arguments of the parties
25 The Council submits as a preliminary point that in order to determine whether a party is directly concerned according to the case-law, it is appropriate to assess whether the contested provisions directly affect the legal situation of that party and whether the implementation of those provisions is purely automatic, that is, there is no need for any intermediate measures to apply those provisions.
26 The Council observes, first, that the contested provisions fix quotas only for certain species of deep-sea fish and that the fishing of other deep-sea fish species which are not subject to the quotas may be authorised by a Member State without any quantitative limit. Moreover, even where there are quotas for certain species of deep-sea fish, the Member State concerned is not obliged to allocate such quotas to its fishermen. According to Article 4 of Regulation No 2270/2004, the granting of quotas is to be without prejudice to ‘exchanges made pursuant to Article 20(5) of Regulation (EEC) No 2371/2002’. It is therefore possible for a Member State to exchange its deep-sea species quotas for other quotas.
27 Second, the Council and the Commission maintain that the Member States have discretion in the allocation of the quotas. Community law does not require the Member States to allocate fishing quotas to undertakings according to historic fishing rights; it is even possible for Member States to choose a system for allocation of fishing opportunities according to the ‘first come, first served’ rule, or to give preference to the auctioning method. The Estonian authorities thus have a wide margin of discretion in applying the contested provisions. It is the system chosen by the Member States which directly affects the applicant, not the Community provisions themselves.
28 Third, the Council, supported by the Commission, contends that standing to challenge Community provisions must be assessed in the light of the legislative provisions in question and not, as the applicant maintains, in the light of national provisions which restrict the discretion of the Estonian authorities. Since, under the contested provisions, the Estonian authorities may grant quotas as they see fit, the Council considers that those same authorities may amend national law. The Council adds that if the issue of standing to bring proceedings fell to be assessed in the light of national law, the Community Courts would be required to interpret national law, which would go beyond their jurisdiction (Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 43). In the present case, the correct approach would be to bring an action before the national courts against the national measures applying the contested provisions, since the national measures are the only ones which directly affect the applicant.
29 The Council adds that a distinction must be drawn between the contested provisions and the regulation which was challenged in Case C‑263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425. The latter introduced technical measures applying directly to fishermen, without any intervention by the national authorities. The applicant accordingly cannot rely on that case-law.
30 The applicant considers that the contested provisions are of direct concern to it.
31 According to the applicant, the application of the contested provisions in Estonia is automatic. The Estonian authorities have no latitude as to the fishing opportunities offered, as the contested provisions do not allow them to give authorisation unilaterally for the limits prescribed by those provisions to be exceeded.
32 The Council’s assertion that the contested provisions concern only certain species of deep-sea fish, so that other species may be fished without limitation, is misleading. The applicant states that the contested provisions cover all deep-sea fish, which constitute a single category.
33 Moreover, the possibility for Estonia to exchange quotas with other Member States is contrary to the principles of sound administration, of State protection of its own nationals, of legal certainty and of the protection of legitimate expectations. Estonian law, furthermore, does not allow the competent authorities to exchange quotas without the consent of the traditional fishermen concerned.
34 The applicant adds that the Council’s argument, to the effect that Member States are not obliged to grant quotas to individuals and may choose merely to intervene only once the quotas have been reached, in itself proves that the contested provisions directly affect the applicant. If the Member States have no quotas to impose, as they are already fixed by Community rules, the Member State intervenes only in the event of that quota being exceeded, which amounts to saying that the Member States have no latitude.
35 The Estonian Government states that Estonian historic fishing rights do not allow the Estonian authorities to grant a fishing permit to a new undertaking, since the most established fishermen do not consent to the issue of such a permit. Moreover, it was precisely the applicant who created those fishing opportunities because it was the only undertaking to have obtained a fishing permit for deep-sea species in 2004, and the only one to have applied for one for 2005. As there was only one deep-sea fishing undertaking in the areas covered by the contested provisions, the Estonian Government decided that there was no other solution than to allow the applicant’s application to the extent of the quantities laid down for Estonia in the contested provisions.
36 The applicant adds that the Council’s argument that its standing to bring proceedings must be assessed only in the light of the Community provisions is not consistent with the case-law. Thus, in Case C‑309/89 Codorníu v Council [1994] ECR I‑1853, the applicant was found to be directly and individually concerned on the basis of exclusive rights recognised under national law.
37 In the light of these factors, the applicant considers that it is directly concerned by the contested provisions because those provisions directly affect its legal situation, in that the absence of Community rules prevented it from fishing from 1 May 2004 until the end of 2004, and in that the fishing opportunities allocated for 2005 are far fewer than those they enjoyed before the accession of Estonia.
38 The applicant adds that only an action for annulment pursuant to Article 230 EC meets the requirements of effective judicial protection, in accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Findings of the Court
39 According to settled case-law, for an individual to be directly concerned by a Community measure, that measure must directly affect the legal situation of that individual and there must be no discretion left to the addressees of that measure who are responsible for its implementation, that implementation being purely automatic and resulting from Community rules alone without the application of other intermediate rules (Joined Cases 41/70 to 44/70 International Fruit Company and Others v Commission [1971] ECR 411, paragraphs 23 to 29; Case C‑152/88 Sofrimport v Commission [1990] ECR I‑2477, paragraph 9; and Case T‑69/99 DSTV A/S v Commission [2000] ECR II‑4039, paragraph 24).
40 It is therefore appropriate to consider whether the contested provisions directly affect the applicant’s legal situation and whether the Estonian Government has any discretion as to the application of the contested provisions or whether they are purely automatic, without the application thereof requiring the intervention of intermediate rules.
41 In the present case, a number of factors show, first, that the contested provisions cannot, by themselves, directly affect the applicant’s legal situation and, second, that the Estonian Government did have considerable discretion as to their implementation.
42 It is apparent from Regulation No 2340/2002, as amended by Regulation No 2269/2004, and from Regulation No 2270/2004, that the fishing opportunities are distributed by the Council amongst the Member States concerned, without quotas being directly allocated to individuals by those regulations, which implies subsequent intervention by each Member State. As evidenced by the sixth recital in the preamble to Regulation No 2340/2002, as amended by Regulation No 2269/2004, and the third paragraph of Article 20 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), which was implemented, with respect to deep-sea species, by Regulation No 2270/2004, it is for the Member States to manage the fishing opportunities allocated to them, in respect of vessels flying their flags. The fishing opportunities provided for by those regulations do not therefore constitute, in the present case, provisions whose application is purely automatic and which produce legal effects without the intervention of intermediate rules.
43 The Court also notes that Regulations Nos 2269/2004 and 2270/2004 leave the Member States broad discretion as to how they manage fishing opportunities, since they do not lay down any specific system for the Member States to allocate fishing opportunities to individuals. Member States are thus free to choose, for example, between a system for allocation of fishing opportunities according to the ‘first come, first served’ rule, a system of equal distribution amongst all the undertakings concerned or an auction.
44 Moreover, Article 4 of Regulation No 2340/2002, as amended by Regulation No 2269/2004, and Article 4 of Regulation No 2270/2004 state that ‘the allocation of fishing opportunities among Member States shall be without prejudice to … exchanges’ between Member States. Those provisions thus allow Member States to exchange fishing quotas between themselves, which could lead to a situation where Member States availing themselves of that opportunity hold fishing quotas available for allocation to individuals which are very different from those originally allocated to them by the Council.
45 These findings are not affected by the applicant’s assertions, first, that the Estonian authorities cannot unilaterally give authorisation for those opportunities to be exceeded and, second, that under the historic rights recognised under Estonian law and principles of Estonian law, the Estonian authorities do not have any discretion or latitude in respect of the fishing opportunities allocated to them.
46 First, it is inherent in a system establishing total allowable catches (TACs) and fishing quotas, by setting fishing opportunities for each Member State (such as that put in place by Regulation No 2340/2002, as amended by Regulation No 2269/2004, and Regulation No 2270/2004), that the Member States are required to ensure compliance with those opportunities so that they are not exceeded. That fact does not, however, call into question the discretion and latitude enjoyed by Member States in respect of the fishing opportunities allocated to them, within the limits of those opportunities.
47 Second, as evidenced by the case-law, it is in relation to the Community measure in question that the issue of whether it directly affects the situation of the individual concerned is to be considered (International Fruit Company and Others v Commission, paragraph 39 above, paragraphs 23 to 29; Sofrimport v Commission, paragraph 39 above, paragraph 9; Case C‑386/96 Dreyfus v Commission [1998] ECR I‑2309, paragraph 43; and DSTV A/S v Commission, paragraph 39 above, paragraph 24). Thus, the fact that a Member State may be restricted, by specific features of its national law at a given moment, in its latitude in managing the fishing opportunities allocated to it cannot change the fact that Regulation No 2340/2002, as amended by Regulation No 2269/2004, and Regulation No 2270/2004 do not constitute provisions which may be implemented directly without the intervention of intermediate rules of the Member States.
48 In the light of all the foregoing, the applicant cannot be regarded as being directly affected by the contested provisions.
49 It follows that, since the applicant has failed to demonstrate that the contested provisions are of direct concern to it, it is not necessary to consider whether the applicant is individually affected by the contested provisions.
50 This conclusion cannot be called into question by the requirement of effective judicial protection. According to settled case-law, the Community Courts may not, without going beyond their jurisdiction, interpret the conditions that an individual can bring an action challenging a regulation only if he is concerned directly and individually in such a manner that the effect is to set aside those conditions, expressly laid down in the Treaty, even in the light of the principle of effective judicial protection (Commission v Jégo-Quéré, paragraph 29 above, paragraph 36).
51 It follows from all the above considerations that the applicant does not satisfy one of the conditions of admissibility laid down by the fourth paragraph of Article 230 EC, and that those conditions may not be set aside, even in the light of the principle of effective judicial protection.
52 Consequently, the action must be dismissed as inadmissible.
Costs
53 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, and the Council has applied for costs against it, the applicant must be ordered to bear its own costs and to pay those incurred by the Council. Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Fourth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. The applicant shall bear its own costs and pay those incurred by the Council.
3. The Commission shall bear its own costs.
Luxembourg, 9 January 2007.