ORDER OF THE COURT OF FIRST INSTANCE (Seventh Chamber)
2 June 2008(*)
(Action for annulment – Fishing quotas – Regulation (EC) No 2371/2002 – Lack of direct concern – Inadmissibility)
In Case T‑172/07,
Atlantic Dawn Ltd, established in Killybegs, Donegal (Ireland),
Antarctic Fishing Co. Ltd, established in Killybegs, Donegal,
Atlantean Ltd, established in Killybegs, Donegal,
Killybegs Fishing Enterprises Ltd, established in Killybegs, Donegal,
Doyle Fishing Co. Ltd, established in Killybegs, Donegal,
Western Seaboard Fishing Co. Ltd, established in Killybegs, Donegal,
O’Shea Fishing Co. Ltd, established in Killybegs, Donegal,
Aine Fishing Co. Ltd, established in Burtonport, Donegal,
Brendelen Ltd, established in Greencastle, Donegal,
Cavankee Fishing Co. Ltd, established in Greencastle, Donegal,
Ocean Trawlers Ltd, established in Killybegs, Donegal,
Eileen Oglesby, residing in Burtonport, Donegal,
Noel McGing, residing in Killybegs, Donegal,
Mullglen Ltd, established in Balbriggan, Dublin (Ireland),
Bradan Fishing Co. Ltd, established in Sligo, Sligo (Ireland),
Larry Murphy, residing in Castletownbere, Cork (Ireland),
Pauric Conneely, residing in Claregalway, Galway (Ireland),
Thomas Flaherty, residing in Kilronan, Aran Islands, Galway,
Carmarose Trawling Co. Ltd, established in Killybegs, Donegal,
Colmcille Fishing Ltd, established in Killybegs, Donegal,
represented by G. Hogan, SC, N. Travers, T. O’Sullivan, BL, and D. Barry, Solicitor,
applicants
supported by
Kingdom of Spain, represented by N. Díaz Abad, abogado del Estado,
v
Commission of the European Communities, represented by K. Banks, acting as Agent,
defendant,
ACTION for annulment of Commission Regulation (EC) No 147/2007 of 15 February 2007 adapting certain fish quotas from 2007 to 2012 pursuant to Article 23(4) of Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2007 L 46, p. 10),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Seventh Chamber),
composed of N.J. Forwood, President, E. Moavero Milanesi and L. Truchot (Judge Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute and procedure
1 An investigation carried out by the United Kingdom authorities in 2005 and 2006 disclosed that the fishing quotas allocated to Ireland and to the United Kingdom of Great Britain and Northern Ireland had been exceeded for mackerel and herring between 2001 and 2005. As a result of the information supplied by the United Kingdom authorities the Commission deducted the excess catches from the quotas allocated to those two Member States in respect of the pelagic fish species concerned for the years 2007 to 2012.
2 Under the Common Fisheries Policy, the Council is required to establish the fishing opportunities to be allocated to Member States and is to determine the conditions for adjusting them from one year to the next, in accordance with 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). A deduction system was established for cases where the allocated fishing opportunities have been exceeded. Article 23(4) of Regulation No 2371/2002 allows the Commission to deduct the excess quantities fished in the course of a year by the vessels of a Member State from the future fishing opportunities of that State in respect of the same pelagic species of fish. Previously, Council Regulation (EC) No 847/96 of 6 May 1996 introducing additional conditions for year-to-year management of TACs [total allowable catches] and quotas (OJ 1996 L 115, p. 3) had provided for that power of deduction only from one year to the next.
3 Further to Article 23(4) of Regulation No 2371/2002, the Commission adopted Regulation (EC) No 147/2007 of 15 February 2007 adapting certain fish quotas from 2007 to 2012 pursuant to Article 23(4) of Council Regulation (EC) No 2371/2002 (OJ 2007 L 46, p. 10, ‘the contested regulation’), which reduces the mackerel quotas allocated to the United Kingdom of Great Britain and Northern Ireland and to Ireland, and also the herring quotas allocated to the United Kingdom of Great Britain and Northern Ireland, for the period 2007 to 2012.
4 The Irish Minister for Communications, Marine and Natural Resources distributes the annual fishing quota allocated to Ireland according to a system of ratios for the members of the Refrigerated Sea Water pelagic segment of the fleet. The ten largest vessels have a ratio of ten, the eight medium-sized vessels a ratio of seven and the five smallest a ratio of five. The vessels of the polyvalent segment are allocated a flat-rate quantity, at present restricted to 7 000 tonnes per annum.
5 The applicants, Atlantic Dawn Ltd and Others, are members of the Refrigerated Sea Water pelagic fleet of Ireland, which consists of 23 licence holders, in accordance with the capacity objectives of the Irish pelagic fleet set by the fourth Multiannual Guidance Programme produced by the Commission on 27 June 2007.
6 By application lodged at the Registry of the Court on 11 May 2007, the applicants brought the present action for annulment.
7 By application lodged at the Registry of the Court on 30 August 2007, the Kingdom of Spain sought leave to intervene in support of the form of order sought by the applicants.
8 By order made on 13 November 2007 by the President of the Seventh Chamber of the Court, the intervention of the Kingdom of Spain was allowed.
9 By separate document lodged at the Registry of the Court of First Instance on 7 September 2007, the Commission raised an objection of inadmissibility under Article 114(1) of the Court’s Rules of Procedure.
10 On 5 November 2007 the applicants lodged their observations on that objection.
11 On 28 December 2007 the Kingdom of Spain intimated that it was waiving its right to lodge a statement in intervention on admissibility.
Forms of order sought
12 In their application the applicants claim that the Court should:
– annul the contested regulation in its entirety;
– or, in the alternative, annul Article 1 of and Annex I to the contested regulation, in so far as those provisions reduce the mackerel quotas allocated to Ireland for the years 2007 to 2012;
– order the Commission to pay the costs.
13 In its objection of inadmissibility, the Commission contends that the Court should:
– dismiss the action as manifestly inadmissible;
– order the applicants to pay the costs.
14 In their observations on the objection of inadmissibility, the applicants claim that the Court should:
– reject the objection of inadmissibility;
– or reserve its decision on the objection of inadmissibility for the decision on the merits of the application.
Law
15 Under Article 114(1) of the Rules of Procedure, the Court may rule on the objection of inadmissibility without going to the substance of the case, if a party so requests. In accordance with Article 114(4), the Court is to decide on the objection or reserve its decision for the final judgment.
16 In the present case, the Court considers that there is sufficient information in the documents before it and that consequently it is possible to rule without taking further steps in the procedure.
17 As set out in 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’.
18 The Commission takes the view that the applicants are neither directly nor individually concerned by the contested regulation.
19 Since both of those conditions must be fulfilled, the Court considers that it is appropriate to examine first whether the applicants are directly concerned since, if they are not, it would be otiose to consider whether the contested provisions are of individual concern to them.
Arguments of the parties
20 The Commission points out, first, that in order to determine whether a party is directly concerned, in accordance with the provisions of the fourth paragraph of Article 230 EC, it is necessary to consider whether the contested provisions have direct legal effects on that party and whether the implementation of those provisions is wholly automatic, that is, there is no need for any intermediate rules to apply them.
21 The Commission argues that, under Article 20(1) of Regulation No 2371/2002, the fishing opportunities are distributed among the Member States concerned by the Council and that the latter does not allocate the quotas directly to individuals.
22 It adds that, in accordance with Article 20(3) of that regulation, each Member State is to decide on the method of allocating the fishing opportunities for vessels flying its flag. Implementation of the fishing opportunities for individuals is therefore not wholly automatic and the intermediate rules put in place by each Member State are essential.
23 The Commission contends that the reduction of mackerel quotas allocated to Ireland pursuant to Article 23(4) of Regulation No 2371/2002 does not alter the legal nature of the fishing opportunities of the Member State concerned. Action by the Member State continues to be necessary before individuals can acquire rights or suffer harm.
24 It maintains that the contested regulation does not depart from the system of allocation of areas of competence laid down by Regulation No 2371/2002 and therefore does not affect the discretion available to Ireland to adjust the fishing opportunities among its vessels.
25 The Commission draws attention, further, to the option retained by the Member States of exchanging all or part of the fishing opportunities allocated to them, pursuant to Article 20(5) of Regulation No 2371/2002. That option is restated in Council Regulation (EC) No 41/2007 of 21 December 2006 fixing for 2007 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ 2007 L 15, p. 1). The result of such exchanges may be that certain Member States secure quotas substantially different from those granted by the Council.
26 According to the Commission, the indirect effect of the contested regulation is illustrated by the information provided by the applicants. It is reported that the Minister for Communications, Marine and Natural Resources decided to alter the traditional method of quota distribution, so that the deductions operated apply only to the vessels responsible for the over-fishing. That decision, which is the subject of an action before the national courts, is evidence of the essential role of the governmental authorities in respect of adjustment of the contested regulation.
27 The Commission concludes that it is not the contested regulation, no more than its Article 1 and Annex I, taken separately, but rather the decision taken by the Irish authorities in implementation of the regulation which is of direct concern to the applicants.
28 The applicants, by contrast, take the view that the contested provisions are of direct concern to them.
29 In their opinion, Article 20(3) of Regulation No 2371/2002, which provides that ‘[e]ach Member State shall decide, for vessels flying its flag, on the method of allocating the fishing opportunities assigned to that Member State in accordance with Community law’, obliges the Member States to distribute the fishing opportunities but gives them no discretion in the matter, since the method of distribution is clearly established and automatic. The circumstances which gave rise to the order of the Court of 9 January 2007 in Case T‑127/05 Lootus Teine Osaühing v Council, not published in ECR, referred to by the Commission, cannot, they argue, be transposed to the present case. The wide margin of discretion enjoyed by the Estonian authorities in respect of the distribution of their quota is not comparable to the constitutional requirements to which the Irish authorities are subject in respect of the distribution of their quota.
30 The applicants maintain that the method of distribution adopted in Ireland has been recognised and confirmed by the High Court of Ireland, which states, in its judgment Atlantean v Minister for Communications,Marine and Natural Resources of 12 July 2007, that there may be an entitlement, in the nature of a ‘legitimate expectation, that the Minister, in allocating Ireland’s overall quota, will approach the division of the national quota into allocations for individual boats in a fair and appropriate manner’. In their opinion, that legitimate expectation entails the continued use of the administrative practice of ratios used for some 20 years to allocate automatically the quota among the 23 vessels of the Refrigerated Sea Water pelagic fleet.
31 On that point, they argue that it is necessary to draw a distinction between established methods of allocating quotas and methods which are not yet established, in particular in the new Member States. Where there are no established rules, the margin of discretion of the national authorities is real and it is more difficult to identify the direct effect of the European quota legislation. By contrast, in Ireland, the method of quota allocation is so well established that the European legislation has a direct effect on the legal situation of the fishing licence holders. The requirement that the Commission be informed of the method chosen for quota allocation shows that that method is to subsist over a number of years.
32 The circumstances which gave rise to the order in Lootus Teine Osaühing v Council can also be distinguished from those of the present case, since the pleas in law of the applicant in that case were based on historic rights and principles under Estonian law. In the present case, the applicants do not allege that national law is at odds with Community law. On the contrary, they maintain that their legal situation is directly affected by the contested regulation by virtue of the Irish system of quota allocation. The applicants claim that they are directly concerned not only as fishing licence holders, but also as the group among the members of which the quota is distributed.
33 Moreover, the possibility of exchanging quotas between Member States is wholly theoretical, because of the continuous reduction of quotas. The Commission’s argument on that point, intended to show that the contested regulation has no direct and adverse effects on the applicants, bears no relation to reality and cannot justify the action being declared inadmissible. The applicants also state that that argument presupposes that the regulations relating to quotas allocated for the period 2008 to 2012 will provide for the possibility of such quota exchanges. Even when that exchange is possible, it remains the case that the option of altering de facto the quotas depends solely on national decisions and does not deprive the Community legislation reducing the quotas allocated to Ireland of direct and immediate effect.
Findings of the Court
34 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 the person concerned and there must be no discretion left to the persons to whom that measure is addressed and who are responsible for its implementation, which must be wholly automatic and result 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; Case T‑69/99 DSTV v Commission [2000] ECR II‑4039, paragraph 24; and order in Lootus Teine Osaühing v Council, paragraph 39).
35 It is appropriate to consider whether the provisions of the contested regulation directly affect the legal situation of the applicants and whether the Irish Government has discretion as to implementation of the contested provisions or whether those provisions are wholly automatic and require no intermediate rules for their implementation.
36 In the present case, several factors indicate that the contested provisions cannot, by themselves, directly affect the legal situation of the applicants and that the Irish Government enjoys discretion in their implementation.
37 It is clear from Article 20(1) of Regulation No 2371/2002 that the Council decides on the distribution of fishing opportunities between the Member States concerned but that quotas are not directly assigned to individuals by the regulations adopted each year.
38 It is for each Member State, pursuant to Article 20(3) of Regulation No 2371/2002, to decide, for the vessels flying its flag, how to assign the fishing opportunities allocated to it, in accordance with Community law.
39 Lastly, Article 23(4) of Regulation No 2371/2002 provides that the Commission is to operate deductions from future fishing opportunities of a Member State, in the case where it has established that that Member State has exceeded the fishing opportunities allocated to it. The deductions operated by the Commission in Article 1 of the contested regulation on the basis of that provision alter the mackerel quota allocated by the Council to Ireland but are not also directly imposed on individuals.
40 Accordingly, the rules governing both the allocation of fishing opportunities and deductions from them, as established by the contested regulation, are not provisions which apply wholly automatically and which have legal effects without the intervention of intermediate rules. On the contrary, they confer on Member States the discretion to determine how to allocate fishing opportunities to individuals and how to impose the deductions decided on by the Commission.
41 By not establishing one specific system or method of allocating fishing opportunities to individuals, Regulation No 2371/2002 leaves to Member States a broad power of discretion in the management of their fishing opportunities (order in Lootus Teine Osaühing v Council, paragraph 43). For example, the Member States are free to choose between a system of deductions equally distributed among all fishing undertakings or imposed solely on those fishing undertakings responsible for exceeding the quota.
42 It should be added that, contrary to what is claimed by the applicants, it does not follow from Regulation No 2371/2002 that the obligation to inform the Commission of the method of allocating fishing opportunities chosen by the Member States means that the choice is final.
43 In the present case, it is clear from the judgment of the High Court of Ireland of 12 July 2007 referred to above, which sets aside two decisions of the Minister for Communications, Marine and Natural Resources intended to reduce the mackerel fishing quota allocated to the vessel Atlantean Ltd, named as being responsible for the over‑fishing from 2001 to 2005, that the Irish Minister for Communications, Marine and Natural Resources has competence to distribute the quota allocated to Ireland among authorised fishing undertakings and to implement the deductions decided on by the Commission. The Minister’s decisions were set aside on the ground that the change in method, in itself legitimate, had infringed certain constitutional principles. The High Court’s judgment thus confirms both the necessity of intervention by the Irish Government in respect of the distribution of the national quota and the deductions, and the reality of the national authorities’ margin of discretion.
44 It should also be recalled that, pursuant to Article 20(5) of Regulation No 2371/2002, Member States may exchange all or part of the fishing opportunities allocated to them. That provision enables Member States to exchange fishing quotas among themselves, with the possible result that Member States which make use of that possibility may secure fishing quotas for allocation to individuals quite distinct from those which were originally allocated to them by the Council (see, by analogy, order in Lootus Teine Osaühing v Council, paragraph 44). There again, the Member States have a margin of discretion which precludes the contested regulation from having any direct effect.
45 Even on the assumption that, as the applicants claim, an effect of the continuous reduction of the total allowable catches of mackerel is that exchanges of fishing opportunities since the 1990s have become increasingly rare, that option of exchange nonetheless exists and remains available to the Member States.
46 These findings are not affected by the claims of the applicants that, in Ireland, the long-established method of quota distribution cannot undergo any alteration and thus confers direct effect on the Community legislation.
47 It is in relation to the Community measure in question that the issue of whether it directly affects the situation of the individual in question is to be considered (International Fruit Company and Others v Commission, paragraphs 23 to 29; Sofrimport v Commission, paragraph 9; Case C‑386/96 Dreyfus v Commission [1998] ECR I‑2309, paragraph 43; DSTV v Commission, paragraph 24; and order in Lootus Teine Osaühing v Council, paragraph 47). 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 the contested provisions cannot be implemented directly without the intervention of intermediate rules (order in Lootus TeineOsaühing v Council, paragraph 47).
48 Moreover, it is clear from a letter from the Irish Minister for Communications, Marine and Natural Resources dated 17 October 2001, and from a reply to a question in the Irish Parliament presented in 2005, produced by the applicants, that the system of quota distribution in force in Ireland is both mixed and capable of change. Those documents show that a system of ratios for the Refrigerated Sea Water pelagic segment of the fleet co-exists with allocation of a fixed tonnage for the polyvalent segment of the fleet. The ratios and tonnage in question are capable of being altered, as is demonstrated by the fact that, in 2001, the ratio granted to the small vessels of the Refrigerated Sea Water pelagic fleet rose from 3.5 to 5 and the quantity of mackerel which the polyvalent segment of the fleet was authorised to catch rose from 1 000 to 7 000 tonnes.
49 It follows from all of the foregoing that the applicants do not satisfy one of the conditions of admissibility laid down by the fourth paragraph of Article 230 EC.
50 Consequently, the action must be dismissed as being inadmissible.
Costs
51 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 applicants have been unsuccessful and the Commission has applied for costs to be awarded against them, the applicants must be ordered to bear their own costs and to pay those incurred by the Commission. Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States which intervene in proceedings are to bear their own costs. The Kingdom of Spain must for that reason bear its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Seventh Chamber)
hereby orders:
1. The action is dismissed as being inadmissible.
2. The applicants, Atlantic Dawn Ltd and Others, shall bear their own costs and pay those incurred by the Commission.
3. The Kingdom of Spain shall bear its own costs.
Luxembourg, 2 June 2008.