JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
13 May 2014 (*)
(Fisheries — Measures to conserve fishery resources — Sectoral restructuring — Requests to increase the Multiannual Guidance Programme objectives to improve safety on board — Ireland’s request concerning various vessels — Decision adopted following the General Court’s annulment of the initial decision concerning the same procedure — New refusal decision — Lack of competence of the Commission)
In Joined Cases T‑458/10 to T‑467/10 and T‑471/10,
Peter McBride, residing in Downings (Ireland), represented initially by A. Collins SC, N. Travers, Barrister, and D. Barry, Solicitor, and subsequently by N. Travers, D. Barry and E. Barrington, Barrister,
applicant in Case T‑458/10,
Hugh McBride, residing in Downings, represented initially by A. Collins SC, N. Travers and D. Barry, and subsequently by N. Travers, D. Barry and E. Barrington,
applicant in Case T‑459/10,
Mullglen Ltd, established in Largy (Ireland), represented initially by A. Collins SC, N. Travers and D. Barry, and subsequently by N. Travers, D. Barry and E. Barrington,
applicant in Case T‑460/10,
Cathal Boyle, residing in Fiafannon (Ireland), represented initially by A. Collins SC, N. Travers and D. Barry, and subsequently by N. Travers, D. Barry and E. Barrington,
applicant in Case T‑461/10,
Thomas Flaherty, residing in Kilronan (Ireland), represented initially by A. Collins SC, N. Travers and D. Barry, and subsequently by N. Travers, D. Barry and E. Barrington,
applicant in Case T‑462/10,
Ocean Tawlers Ltd, established in Killybegs (Ireland), represented initially by A. Collins SC, N. Travers and D. Barry, and subsequently by N. Travers, D. Barry and E. Barrington,
applicant in Case T‑463/10,
Patrick Fitzpatrick, residing in Killeany (Ireland), represented initially by A. Collins SC, N. Travers and D. Barry, and subsequently by N. Travers, D. Barry and E. Barrington,
applicant in Case T‑464/10,
Eamon McHugh, residing in Killybegs, represented initially by A. Collins SC, N. Travers and D. Barry, and subsequently by N. Travers, D. Barry and E. Barrington,
applicant in Case T‑465/10,
Eugene Hannigan, residing in Killybegs, represented initially by A. Collin SC, N. Travers and D. Barry, and subsequently by N. Travers, D. Barry and E. Barrington,
applicant in Case T‑466/10,
Larry Murphy, residing in Castletownbere (Ireland), represented initially by A. Collins SC, N. Travers and D. Barry, and subsequently by N. Travers, D. Barry and E. Barrington,
applicant in Case T‑467/10,
Brendan Gill, residing in Lifford (Ireland), represented initially by A. Collins SC, N. Travers and D. Barry, and subsequently by N. Travers, D. Barry and E. Barrington,
applicant in Case T‑471/10,
v
European Commission, represented, in Cases T‑458/10 to T‑467/10, initially by K. Banks, A. Bouquet and A. Szmytkowska, and subsequently by A. Bouquet and A. Szmytkowska, acting as Agents, assisted by B. Doherty, Barrister, and, in Case T‑471/10, by A. Bouquet and A. Szmytkowska, assisted by B. Doherty,
defendant,
ACTION for the annulment of Commission decisions C(2010) 4758, C(2010) 4748, C(2010) 4757, C(2010) 4751, C(2010) 4764, C(2010) 4750, C(2010) 4761, C(2010) 4767, C(2010) 4754, C(2010) 4753 and C(2010) 4752 of 13 July 2010 rejecting the request submitted by Ireland seeking to increase the Multiannual Guidance Programme IV objectives for the period from 1 January 1997 to 31 December 2001 to take into account improvements on safety relating to the vessels Peader Elaine II, Heather Jane II, Pacelli, Marie Dawn, Westward Isle, Golden Rose, Shauna Ann, Antartic, Niamh Eoghan, Menhaden and Brendelen, belonging to Peter McBride, Hugh McBride, Mullglen, Mr Boyle, Mr Flaherty, Ocean Trawlers, Mr Fitzpatrick, Mr McHugh, Mr Hannigan, Mr Murphy and Mr Gill, respectively, adopted following the annulment of Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase the MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 metres in length overall (OJ 2003 L 90, p. 48) as a result of the judgments of the Court of Justice in Joined Cases C‑373/06 P, C‑379/06 P and C‑382/06 P Flaherty and Others v Commission [2008] ECR I‑2649 and of the General Court in Joined Cases T‑218/03 to T‑240/03 Boyle and Others v Commission [2006] ECR II‑1699,
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude (Rapporteur), President, I. Wiszniewska-Białecka and I. Ulloa Rubio, Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 9 January 2014,
gives the following
Judgment
Background to the dispute
1 Between 1 November and 14 December 2001, the applicants, Peter McBride, Hugh McBride, Mullglen Ltd, Cathal Boyle, Thomas Flaherty, Ocean Tawlers Ltd, Patrick Fitzpatrick, Eamon McHugh, Eugene Hannigan, Larry Murphy and Brendan Gill submitted to the Department of Communications, Marine & Natural Resources requests for increase of capacity for their vessels, on grounds of safety improvements pursuant to Article 4(2) of Council Decision 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with a view to achieving a balance on a sustainable basis between resources and their exploitation (OJ 1997 L 175, p. 27).
2 In support of those individual applications, by letter of 14 December 2001, the Department of Communications, Marine & Natural Resources made a request to the Commission of the European Communities to increase the capacity of the polyvalent segment of the Irish fleet by 1 304 gross tonnes and the capacity of the pelagic segment of the Irish fleet by 5 335 gross tonnes in accordance with Article 4(2) of Decision 97/413 (‘the original request’).
3 On 4 April 2003, the Commission adopted Decision 2003/245/EC on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 metres in length overall (OJ 2003 L 90, p. 48). The applicants’ vessels all appeared in Annex II to the decision, which, according to the second paragraph of Article 2 thereof, listed the requests rejected by the Commission.
4 Decision 2003/245 was adopted on the basis of Article 4 of Decision 97/413 and Article 6 of Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (OJ 1999 L 337, p. 10).
5 Article 4(2) of Decision 97/413 provided that ‘[i]n the Multiannual Guidance Programmes for Member States, increases in capacity resulting exclusively from safety improvements [were to] justify, on a case by case basis, an increase by the same amount of the objectives for fleet segments where they [did] not increase the fishing effort of the vessels concerned’. Article 9(1) of that decision stated that the Commission was responsible for ensuring the implementation of the objectives and detailed rules of the decision. As regards the procedures for implementing Decision 97/413, Article 10 of that decision referred to Article 18 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), which required consultation with the management committee for the fisheries and aquaculture sector.
6 Article 6(2) of Regulation No 2792/1999 provided that ‘Member States [could] submit a request for a clearly identified and quantified increase in the capacity objectives for measures to improve safety … provided that these measures do not result in an increase in the exploitation rate of the resources concerned’. It was added that the Commission was to examine such a request and approve it in accordance with the procedure laid down in Article 23(2) of the same regulation. That article referred to Articles 4 and 7 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), which provided that the Commission was to be assisted by an advisory committee whose operation was defined.
7 Decision 2003/245 was the subject of actions for annulment which gave rise to the judgment of 13 June 2006 in Joined Cases T‑218/03 to T‑240/03 Boyle and Others v Commission [2006] ECR II‑1699 (‘Boyle and Others’), by which the General Court annulled Decision 2003/245 in so far as it applied to the vessels belonging to Mr P. McBride, Mr H. McBride, Mullglen, Mr Boyle, Mr Fitzpatrick, Mr McHugh, Mr Hannigan and Mr Gill. The Court ruled that the Commission had adopted criteria not provided for in the applicable rules and had exceeded its powers (paragraph 134 of the judgment). By letter of 14 June 2006, the owners of the vessels concerned requested the Commission to adopt a new decision complying with the criteria set out in that judgment.
8 Boyle and Others was the subject of an appeal which gave rise to the judgment of 17 April 2008 in Joined Cases C‑373/06 P, C‑379/06 P and C‑382/06 P Flaherty and Others v Commission [2008] ECR I‑2649 (‘Flaherty and Others’), by which the Court of Justice annulled, for the same reasons as those set out in Boyle and Others, Decision 2003/245 in so far as it applied to the vessels belonging to Mr Flaherty, Ocean Tawlers and Mr Murphy (paragraphs 45 to 47 of the judgment). By e-mail of 25 April 2008, the owners of the vessels concerned asked the Commission what steps it had taken to implement Boyle and Others.
9 The applicants’ requests were followed by several exchanges of correspondence between Ireland and the Commission. In particular, the Commission requested additional information from Ireland relating to the technical characteristics of the vessels at issue.
10 On 13 July 2010, the Commission adopted Decisions C(2010) 4758, C(2010) 4748, C(2010) 4757, C(2010) 4751, C(2010) 4764, C(2010) 4750, C(2010) 4761, C(2010) 4767, C(2010) 4754, C(2010) 4753 and C(2010) 4752 (‘the contested decisions’) by which it again rejected the original request concerning the applicants’ vessels. It concluded that:
– as regards the vessels belonging to Mr P. McBride, Mr H. McBride, Mr Fitzpatrick and Mr Hannigan, the replacement of several smaller vessels by a new vessel had not resulted in an increase in the total capacity of the polyvalent segment of the Irish fleet, with the result that Article 4(2) of Decision 97/413 did not apply;
– as regards the vessels belonging to Mullglen, Mr Boyle, Mr Flaherty, Ocean Tawlers, Mr McHugh and Mr Murphy, the increase in tonnage of the new vessels did not result exclusively from safety improvements and had led to an increase in the fishing effort;
– as regards the vessel belonging to Mr Gill, the increase in tonnage resulting from the lengthening of the vessel did not result exclusively from safety improvements and had led to an increase in the fishing effort.
11 The Commission also stated that there was no longer a specific legal basis for the contested decisions in so far as Article 4(2) of Decision 97/413 had been deleted by Article 1(3) of Council Decision 2002/70/EC of 28 January 2002 amending Decision 97/413 (OJ 2002 L 31, p. 77), and had not been replaced by an equivalent provision. Consequently, the Commission stated that it was compelled to adopt an ad hoc decision applying the substantive rules in force at the time of the original request.
Procedure and forms of order sought by the parties
12 By applications lodged at the Court Registry on 27 and 28 September 2010, the applicants brought the present actions.
13 Upon hearing the Report of the Judge-Rapporteur, the Court decided to open the oral procedure.
14 By order of 8 November 2013, the President of the Seventh Chamber of the Court, after hearing the parties, decided to join Cases T‑458/10 to T‑467/10 and T‑471/10 for the purposes of the oral procedure and the judgment. The parties presented oral argument and replied to questions put by the Court at the hearing of 9 January 2014.
15 The applicants claim that the Court should:
– annul the contested decisions;
– order the Commission to pay the costs.
16 The Commission contends that the Court should:
– dismiss the actions;
– order the applicants to pay the costs.
Law
17 In support of their actions, the applicants rely on six pleas in law, alleging lack of legal basis, infringement of essential procedural requirements, misinterpretation of Article 4(2) of Decision 97/413, manifest error in the application of that provision, infringement of the principle of good administration and infringement of the principle of equal treatment.
18 The Court considers it appropriate to begin by examining the first plea, which raises the question of the Commission’s competence to examine the original request and to adopt the contested decisions.
19 In this respect, the applicants submit that the Commission should have adopted the contested decisions on the basis of Article 4(2) of Decision 97/413. In order to comply with Article 266 TFEU and the judgments in Boyle and Others and Flaherty and Others, it should have taken its decisions in accordance with the law applicable at the date of the original request, namely 14 December 2001, which, in all cases, required consultation with the management committee for the fisheries and aquaculture sector as established by Article 17 of Regulation No 3760/92.
20 The Commission, in response to that submission, maintains that, in order to comply with Article 266 TFEU and the judgments in Boyle and Others and Flaherty and Others, it was required to adopt a new decision relating to the original request. However, it was unable to apply Article 4(2) of Decision 97/413 again since that provision had been deleted. The Commission was therefore compelled to adopt an ad hoc decision without any legal basis but applying the substantive rules laid down in Article 4(2).
21 As a preliminary point, and as confirmed by the parties at the hearing, it should be noted that the question of the legal basis of Decision 2003/245 was not discussed in Boyle and Others and Flaherty and Others. It is apparent from paragraph 134 of Boyle and Others that the Court annulled Decision 2003/245 because the Commission had applied criteria not provided for in the applicable rules and that it had thus exceeded its powers.
22 Therefore, those two judgments and the references which may be made to them are not relevant for the purposes of assessing this plea.
23 According to Article 5 TEU, the limits of Union competences are governed by the principle of conferral. The categories and areas of Union competence are defined in Title I of Part One of the TFEU. Article 2(6) TFEU thus provides that the scope of and arrangements for exercising the Union’s competences are to be determined by the provisions of the Treaties relating to each area.
24 As regards the competences conferred on the Union, Article 13(2) TEU states, in addition, that each institution is to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.
25 According to the case-law, within the Union legal order, the institutions have conferred powers only. For that reason, Union measures refer in their preamble to the legal basis which enables the institution concerned to act in the field in question. The choice of the appropriate legal basis has constitutional significance (Case C‑370/07 Commission v Council [2009] ECR I‑8917, paragraph 47; Joined Cases T‑27/03, T‑46/03, T‑58/03, T‑79/03, T‑80/03, T‑97/03 and T‑98/03 SP and Others v Commission [2007] ECR II‑4331, paragraph 71; and Case T‑24/07 ThyssenKrupp Stainless v Commission [2009] ECR II‑2309, paragraph 64).
26 Further, the requirement of legal certainty implies that the binding nature of any act intended to have legal effects must be derived from a provision of Union law which prescribes the legal form to be taken by that act and which must be expressly indicated therein as its legal basis (Case 45/86 Commission v Council [1987] ECR 1493, paragraph 9, and Case C‑370/07 Commission v Council, cited above, paragraph 39).
27 It also follows from the case-law that the provision which forms the legal basis of an act and empowers the Union institution to adopt the act in question must be in force at the time when the act is adopted (Joined Cases C‑201/09 P and C‑216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg [2011] ECR I‑2239, paragraph 75, and SP and Others v Commission, paragraph 118).
28 Furthermore, it should be noted that, according to the case-law, the question of whether the author of the contested act is competent is a matter of public policy and must therefore be raised by the Union judicature even though none of the parties has asked it to do so (Case C‑210/98 P Salzgitter v Commission [2000] ECR I‑5843, paragraph 56).
29 In the present case, in order to decide on the original request, the Commission based Decision 2003/245 on Decision 97/413 and on Regulation No 2792/1999 (see paragraphs 5 and 6 above).
30 However, it is common case that Decision 97/413, whose period of application was extended by Decision 2002/70 until 31 December 2002, was no longer in force on the date when the contested decisions were adopted, namely 13 July 2010. The validity of Decision 97/413 was not further extended.
31 Likewise, Article 6 of Regulation No 2792/1999 was deleted by point 6 of Article 1 of Council Regulation (EC) No 2369/2002 of 20 December 2002 amending Regulation No 2792/1999 (OJ 2002 L 358, p. 49) as from 1 January 2003.
32 Since Decision 97/413 and Article 6 of Regulation No 2792/1999 were no longer in force at the time when the contested decisions were adopted, the procedure for consulting the management committee for the fisheries sector required for their implementation could not apply.
33 In that regard, it must be stated that no provision, even a transitional one, empowered the Commission to examine Ireland’s original request and that no alternative provision in force was capable of empowering the Commission to that end at the date when the contested decisions were adopted.
34 When asked whether point 3.3 of the Annex to Commission Decision 98/125/EC of 16 December 1997 approving the multiannual guidance programme for the fishing fleet in Ireland for the period from 1 January 1997 to 31 December 2001 (OJ 1998 L 39, p. 41) could have constituted an appropriate alternative legal basis, the Commission rightly argued that it cannot base a decision on a measure by which it conferred a power on itself. The principle of conferred powers, as specified in paragraphs 23 to 25 above, precludes an institution, the Commission in the present case, from being able to confer powers on itself. Further, according to Articles 36 EC and 37 EC and Articles 42 TFEU and 43 TFEU, which replaced them, it is for the European Parliament and the Council of the European Union to implement the objectives of the common fisheries policy on a proposal from the Commission. Those provisions in no way provide that the Commission may itself decide on its powers in that policy field.
35 In those circumstances, it must be held that no provisions of primary or secondary law in force as from 1 January 2003 empowered the Commission to decide on the original request or on the requests submitted by the applicants on 14 June 2006 and 25 April 2008 following Boyle and Others and Flaherty and Others. Moreover, the Commission acknowledged, both in its written pleadings and at the hearing, that it had no legal basis to adopt the contested decisions on 13 July 2010.
36 It follows that there was no legal basis and, therefore, no competence empowering the Commission to adopt the contested decisions.
37 Although the applicants have correctly argued that the Commission was not competent to adopt the contested decisions, their reasoning cannot be sustained as regards the alleged existence of another appropriate legal basis. The applicants’ arguments must therefore be rejected for the following reasons.
38 First, the applicants submit that ArcelorMittal Luxembourg and SP and Others cited in paragraph 27 above did not apply in the present case, given that those cases related to the competence of the Commission to impose fines and to the temporal succession of rules in the context of the expiry of the ECSC Treaty and given that alternative legal bases existed. That argument must be rejected since that case-law constitutes a principle of general application, which has already been expressed in situations which differ from the abovementioned context (Case C‑269/97 Commission v Council [2000] ECR I‑2257, paragraph 45; see also, to that effect, Case T‑310/00 MCI v Commission [2004] ECR II‑3253, paragraphs 78 to 114).
39 Secondly, the applicants take the view that the Commission should have adopted the contested decisions on the basis of the provisions applicable at the time when Ireland’s original request was received.
40 In that regard, first of all, it should be clarified that the date of Ireland’s formal submission of its request to increase the objectives of the Multiannual Guidance Programme IV (‘the MAGP IV’) to take into account improvements on safety on the applicants’ vessels is not such as to call into question the Commission’s lack of competence since Decision 2003/245 and the contested decisions had, in any event, to be based on a legal basis in force at the time when they were adopted (see the case-law cited in paragraph 27 above).
41 Next, the applicants’ argument that the legal situation in which the Commission found itself at the time when the contested decisions were adopted in 2010 was identical to that which prevailed at the time when Decision 2003/245 was adopted in 2003 cannot succeed either. The fact that the Commission acted unlawfully at the time when Decision 2003/245 was adopted in 2003 cannot justify the fact that it deviated from general principles of EU law by adopting the contested decisions in 2010 without being empowered to do so.
42 Finally, it should be noted that Ireland submitted its original request pursuant to Article 4(2) of Decision 97/413, the wording of which states that envisaged increases in capacity were part of the multiannual guidance programmes. Further, that request was submitted on 14 December 2001, that is to say several days before the expiry of the MAGP IV which covered the period from 1 January 1997 to 31 December 2001. As the applicants maintain, that request concerned the period covered by the MAGP IV. Having regard to the number of vessels concerned by Ireland’s original request and to the Commission’s duty to exercise due care, the Commission cannot be criticised for not having adopted a decision before the expiry of the MAGP IV on 31 December 2001.
43 In that regard, it must be stated that the EU legislature did not provide for any transitional arrangements which would have permitted the Commission to examine and decide on the requests for increase in capacity which it had received before the expiry or deletion of the provisions granting it that power. Whilst it is true that the absence of such transitional arrangements may be unsatisfactory for individuals, that finding cannot have the effect of setting aside the principle of conferral of powers, which is expressly laid down in the Treaty. The Court would otherwise go beyond the powers conferred on it by the Treaty (see, to that effect, Case C‑263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraph 36).
44 Thirdly, it should be noted that, whilst Article 266 TFEU admittedly creates an obligation on the institution concerned to act, it is not a source of competence for that institution. Any other interpretation would be contrary to the principle of conferral of powers laid down in Article 13(2) TFEU (see paragraphs 23 to 25 above). Although the obligation to act may be distinguished from the competence of the institution, those two notions are not contradictory. In the present case, the Commission was required, under Article 266 TFEU, to take the necessary measures to comply with the judgments in Boyle and Others and Flaherty and Others, but did not, however, have the competence to do so. In such a situation, it is for the Commission to dismiss the applicants’ request on the ground of lack of competence.
45 Such an outcome is, however, without prejudice to the applicants’ right to bring an action for damages against the European Union on the basis of the absence of transitional arrangements which would have permitted the Commission to reach a decision on the request of the Irish authorities (see paragraph 43 above).
46 In the light of the foregoing, it must be held that the Commission was not competent to adopt the contested decisions.
47 Consequently, in so far as it raises the question of lack of competence of the Commission, the first plea must be upheld and the contested decisions must be annulled, without there being any need to examine the other pleas.
Costs
48 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful and the applicants have applied for costs, the Commission must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Annuls Commission Decisions C(2010) 4758, C(2010) 4748, C(2010) 4757, C(2010) 4751, C(2010) 4764, C(2010) 4750, C(2010) 4761, C(2010) 4767, C(2010) 4754, C(2010) 4753 et C(2010) 4752 of 13 July 2010 rejecting the request submitted by Ireland seeking to increase the objectives of the Multiannual Guidance Programme IV in order to take into account improvements on safety relating to the applicants’ vessels;
2. Orders the European Commission to pay the costs.
Van der Woude | Wiszniewska-Białecka | Ulloa Rubio |
Delivered in open court in Luxembourg on 13 May 2014.
[Signatures]