Case C-304/01

Kingdom of Spain

v

Commission of the European Communities

(Common fisheries policy – Regulation (EC) No 1162/2001 – Recovery of the stock of hake – Control of the activities of fishing vessels – Choice of legal basis – Principle of non-discrimination – Obligation to give reasons)

Summary of the Judgment

1. Fisheries – Conservation of resources of the sea – Regulation No 3760/92 – Power delegated to the Commission – Scope

(Council Regulation No 3760/92, Art. 15(1))

2. Fisheries – Conservation of resources of the sea – Measures for the recovery of the stock of hake – Judicial review – Limits

(Commission Regulation No 1162/2001)

3. Fisheries – Conservation of resources of the sea – Measures for the recovery of the stock of hake – Derogation limited to small vessels – Breach of the principle of non-discrimination – None

(Commission Regulation No 1162/2001, Art. 2(2))

4. Acts of the institutions – Statement of reasons – Obligation – Scope

(Art. 253 EC)

1. In the light of the aims of Regulation No 3760/92 establishing a Community system for fisheries and aquaculture, which, according to the wording of its second recital, is intended to ensure the rational and responsible exploitation of living aquatic resources and of aquaculture, whilst recognising the interest of the fisheries sector in its long-term development and its economic and social conditions and the interest of consumers, there are no grounds for a restrictive interpretation of Article 15(1) of that regulation, under which the Council has delegated the power to the Commission to take the measures necessary in the event of serious upheaval liable to jeopardise the objectives of the conservation of resources.

Although both the conditions to which the Council made the Commission’s exercise of that power subject and the terms of the 18th recital to Regulation No 3760/92 make it clear that the Commission must adopt the necessary measures as quickly as possible, Article 15 of that regulation does not, however, make the exercise of that power subject to a specific condition of urgency. Neither does it lay down, where the Commission did not receive a request from a Member State, a precise period of time within which the Commission is to act, failing which it loses its power. Furthermore, it is in no way apparent from that regulation that the Community legislature intended to limit that delegation of power to the Commission so as to render the Commission unable to act if the Council itself were in a position to take the necessary measures.

(see paras 19-20)

2. The Commission enjoys a considerable power of discretion in circumstances where it is necessary to evaluate both a complex situation and the nature or scope of the measures to be taken. Accordingly, in reviewing the exercise of such a power, the Court must confine itself to examining whether there has been a manifest error or misuse of power or whether the authority in question has clearly exceeded the bounds of its discretion.

By deciding upon measures which did not prohibit the fishing of hake or access by the fishing vessels to certain determined geographical areas, but, by merely limiting the number of permitted catches and increasing the mesh size of nets used for that purpose, the Commission clearly took account both of the need for appropriate protection of living aquatic resources and aquaculture and of the interest of the fishing industry in ensuring its long-term development. A total ban on catches would have been likely to involve far greater adverse consequences not only for hake fishermen, but also for fishermen of other species, since traditionally the fishing of hake forms part of mixed catches.

(see paras 23-24)

3. The principle of equal treatment and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.

The derogation laid down in favour of small vessels, in Article 2(2) of Regulation No 1162/2001 establishing measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d and e and associated conditions for the control of activities of fishing vessels, according to which the conditions of paragraph 1 of that article, concerning the proportion of hake caught and retained on board any vessel carrying any towed gear of mesh size 55mm to 99mm are not to apply to any vessel of length less than 12 metres overall which returns to port within 24 hours of its most recent departure from port, cannot be regarded as constituting discrimination between those vessels and longer vessels. Small vessels are, objectively, in a different situation from other vessels. On the one hand, their possible fishing areas are inevitably limited to coastal areas since, unlike vessels of greater dimensions or tonnage, small vessels are not normally capable of reaching fishing areas far out at sea. On the other hand, the latter boats’ activities are ‘opportunist’ in nature to the extent that they catch those species of fish present in the areas which they cover and their fishing activities do not generally target a single species of fish.

(see paras 31, 33-34)

4. Although the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review, it is not necessary for the reasoning to go into all the relevant facts and points of law. The question whether the statement of reasons meets the requirements of that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. This is a fortiori the case where the Member States have been closely associated with the process of drafting the contested measure and are thus aware of the reasons underlying that measure.

Furthermore, the scope of the obligation to state reasons depends on the nature of the measure in question and, in the case of measures of general application, the statement of reasons may be confined to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other. If the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made.

(see paras 50-51)

JUDGMENT OF THE COURT (Second Chamber) 9 September 2004 (1)

(Common fisheries policy – Regulation (EC) No 1162/2001 – Recovery of the stock of hake – Control of the activities of fishing vessels – Choice of legal basis – Principle of non-discrimination – Obligation to give reasons)

In Case C-304/01,APPLICATION for annulment under Article 230 EC, lodged at the Court on 2 August 2001,

applicant,

v

defendant,

THE COURT (Second Chamber),,

composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, J.-P. Puissochet, J.N. Cunha Rodrigues and N. Colneric, Judges,

Advocate General: J. Kokott,

having regard to the written procedure and following the hearing on 16 October 2003,

after hearing the Opinion of the Advocate General at the sitting on 18 November 2003,

gives the following

‘As concerns exploitation activities the general objectives of the common fisheries policy shall be to protect and conserve available and accessible living marine aquatic resources, and to provide for rational and responsible exploitation on a sustainable basis, in appropriate economic and social conditions for the sector, taking account of its implications for the marine eco-system, and in particular taking account of the needs of both producers and consumers.

To that end a Community system for the management of exploitation activities is established which must enable a balance to be achieved, on a permanent basis, between resources and exploitation in the various fishing areas.’

‘1. In the event of serious and unexpected upheaval liable to jeopardise conservation of resources, the Commission, at the request of a Member State or on its own initiative, shall decide on appropriate measures which shall last no more than six months, and which shall be communicated to the Member States and the European Parliament and which shall have immediate effect.

2. Where the Commission receives a request from a Member State, it shall take a decision on the matter within 10 working days.

3. Member States may refer the decision taken by the Commission in accordance with paragraph 1 to the Council within 10 working days of notification of the decision.

4. The Council may take a different decision, by qualified majority, within one month.’

‘1. Notwithstanding the conditions laid down in Article 4(4) and Article 15 of Regulation (EC) No 850/98, catches of hake (

2. The conditions of paragraph 1 shall not apply to any vessel of length less than 12 metres overall which returns to port within 24 hours of its most recent departure from port.’

On those grounds, the Court (Second Chamber) hereby:

Signatures.