Avis juridique important

Judgment of the Court (Sixth Chamber) of 24 November 1993. - Etablissements Armand Mondiet SA v Armement Islais SARL. - Reference for a preliminary ruling: Tribunal de commerce de La Roche-sur-Yon - France. - Fisheries - Prohibition of driftnets more than 2.5 km long - Derogation in favour of tuna fishing boats - Validity. - Case C-405/92. European Court reports 1993 Page I-06133

Summary Parties Grounds Decision on costs Operative part

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1. Fisheries ° Conservation of the resources of the sea ° Community powers ° Measures for the conservation of fishery resources on the high seas ° Covered

2. Fisheries ° Conservation of the resources of the sea ° Technical conservation measures ° Regulation limiting the use of driftnets ° Legal basis ° Provisions governing the common fisheries policy ° Environmental protection considerations also taken into account ° No effect

(EEC Treaty, Arts 39 and 130s; Council Regulation No 345/92)

3. Fisheries ° Conservation of the resources of the sea ° International obligations of the Community ° Technical conservation measures ° Discretionary power of the Council notwithstanding available scientific advice ° Prohibition of the use of certain driftnets ° Legality

(Council Regulations No 170/83, Art. 2, and No 345/92)

4. Fisheries ° Conservation of the resources of the sea ° Technical conservation measures ° Prohibition of the use of driftnets ° Granting of a limited derogation by the Council under its discretionary power ° Breach of the principle of relative stability of catches and the objectives of the common fisheries policy ° None

(EEC Treaty, Art. 39; Council Regulations No 170/83, Art. 4(1) and No 345/92, Art. 1(8))

1. Where the high seas are concerned, the Community has the same rule-making authority in matters within its jurisdiction as that conferred under international law on the State whose flag the vessel is flying or in which it is registered. It has, in particular, competence to adopt, for vessels flying the flag of a Member State or registered in a Member State, measures for the conservation of the fishery resources of the high seas.

2. The limitation on the use of driftnets, imposed by Regulation No 345/92 amending for the 11th time Regulation No 3094/86 laying down certain technical measures for the conservation of fishery resources, was adopted primarily in order to ensure the conservation and rational exploitation of fishery resources and to limit the fishing effort. Those rules are therefore an integral part of the common agricultural policy, whose objectives under Article 39 of the Treaty include ensuring the rational development of production and assuring the availability of supplies, and could therefore be validly adopted by the Council solely on the basis of the provisions governing the common fisheries policy. Even if considerations of environmental protection were a contributory factor in the decision to adopt that regulation, that does not of itself mean that it must be covered by Article 130s of the Treaty.

3. It follows from the wording of Article 2 of Regulation No 170/83 establishing a Community system for the conservation and management of fishery resources that the measures for the conservation of fishery resources need not be completely consistent with the scientific advice and the absence of such advice or the fact that it is inconclusive cannot prevent the Council from adopting such measures as deems necessary for achieving the objectives of the common fisheries policy.

Thus, the Council could prohibit the use of large-scale driftnets under Regulation No 345/92 without exceeding the limits of the discretionary power conferred on it in the implementation of the common agricultural policy. The available scientific advice did not address the problem of the balanced exploitation of all the biological resources of the sea on a lasting basis and in appropriate economic and social conditions and in formulating the prohibition at issue in the light of the Community' s international duty to cooperate in the conservation and management of the living resources of the high seas the Council was merely conforming with widely-held international opinion.

4. In exercising its discretion by limiting, in Article 1(8) of Regulation No 345/92, the derogation from the prohibition on driftnets more than 2.5 kilometres long to five kilometres, and until 31 December 1993 only, the Council' s intention was to proceed gradually towards the ultimate objective of prohibiting all such nets exceeding 2.5 kilometres in length and its action was not contrary to the principle of relative stability or prejudicial to the other objectives of the common fisheries policy. The principle of relative stability of fishing activities defined in Article 4(1) of Regulation No 170/83 relates only to the distribution between the Member States of the volume of catches available to the Community, for each of the stocks of fish considered, and does not apply where fishermen from the Member States may continue to fish even if they are obliged to desist from using certain fishing methods. In pursuing the various objectives of the common agricultural policy set out in Article 39 of the Treaty, the Community institutions must constantly reconcile any conflicts between these objectives taken individually and, where necessary, allow any one of them temporary priority in order to satisfy the demands of the economic factors or conditions in view of which their decisions are made.

In Case C-405/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Commerce, La Roche-sur-Yon (France), for a preliminary ruling in the proceedings pending before that court between

Établissements Armand Mondiet SA

and

Armement Islais SARL

on the validity of Article 1(8) of Council Regulation (EEC) No 345/92 of 27 January 1992 amending for the 11th time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources (OJ 1992 L 42, p. 15),

THE COURT (Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, M. Diez de Velasco, C.N. Kakouris, F.A. Schockweiler and P.J.G. Kapteyn, Judges,

Advocate General: C. Gulmann,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Armement Islais, by Béatrice Ghelber, of the Paris Bar,

° the Council of the European Communities, by Jean-Paul Jacqué, Director of the Legal Service, and John Carbery, Legal Adviser in that Service, acting as Agents,

° the Commission of the European Communities, by Gérard Rozet, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Armement Islais, the Council and the Commission at the hearing on 8 July 1993,

after hearing the Opinion of the Advocate General at the sitting on 28 September 1993,

gives the following

Judgment

1 By judgment of 24 November 1992, received at the Court on 3 December, the Tribunal de Commerce (Commercial Court), La Roche-sur-Yon, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions on the validity of Article 1(8) of Council Regulation (EEC) No 345/92 of 27 January 1992 amending for the 11th time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources (OJ 1992 L 42, p. 15).

2 Those questions were raised in the course of proceedings between Établissements Armand Mondiet (hereinafter "Mondiet"), whose principal place of business is in France, and Armement Islais, likewise established in France, concerning payment for 200 driftnets for tuna fishing, which Armement Islais had ordered from Mondiet in August 1991.

3 It appears from the documents submitted to the Court that Armement Islais, which had been using driftnets approximately 7 km long to fish for tuna in the North-East Atlantic, cancelled that order in November 1991, in view of the adoption by the Council of Regulation No 345/92.

4 Article 1(8) of that regulation inserted a new Article 9a into Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (OJ 1986 L 288, p. 1), under which no vessel may keep on board, or use for fishing, driftnets whose individual or total length is more than 2.5 kilometres; however, the new article also provides that until 31 December 1993, vessels that have fished for albacore tuna with driftnets in the North-East Atlantic during at least the two years immediately preceding the entry into force of Regulation No 345/92 may use driftnets whose total length does not exceed five kilometres.

5 Pursuant to paragraph 4 of Article 9a, that provision applies in all waters, with the exception of the Baltic Sea, the Belts and the Sound, under the sovereignty or jurisdiction of the Member States and, outside those waters, to all fishing vessels flying the flag of a Member State or registered in a Member State.

6 Following the cancellation of Armement Islais' s order, Mondiet brought an action before the Tribunal de Commerce, La Roche-sur-Yon, seeking payment for the goods in question.

7 That court considered that Regulation No 345/92 was capable of constituting force majeure and thus releasing Armement Islais from its obligation to fulfil the contract concluded between the parties, provided that the regulation was not unlawful.

8 Considering that the validity of Regulation No 345/92 would therefore have to be examined in order to dispose of the proceedings, the Tribunal de Commerce, La Roche-sur-Yon, stayed those proceedings and submitted the following questions to the Court for a preliminary ruling:

"1.1. May Council Regulation No 345/92 of 27 January 1992, as an amendment of the regulation implementing Regulation No 170/83, lay down for EEC nationals a limitation on the right to fish on the high seas?

1.2. If not, may that regulation prohibit in the areas within the jurisdiction of the Member States (exclusive economic zone and territorial waters) having on board driftnets of a certain length, thus making it impossible to fish using driftnets, which is practised essentially on the high seas?

2.1. Is it therefore possible for that regulation arbitrarily to ignore the only scientific advice available, namely:

° the report of the Standing Committee for Research and Statistics of the International Commission for the Conservation of Atlantic Tunas;

° and above all the IFREMER/IEO report, even though it was commissioned by the Commission, which stated that there was no problem relating to tuna resources or to damage to other species of animal?

2.2. Is it not the case that the regulation ought, on the contrary, to accord with that available scientific advice?

2.3. Can that regulation therefore have been validly adopted for symbolic reasons?

2.4. May the regulation limit to 5 km until 31 December 1993 the derogation from the prohibition?

2.5. May the regulation also provide, as regards any derogation for a limited period, that that derogation will be extended only 'in the light of scientific evidence showing the absence of any ecological risk' ? Does that not constitute a reversal of the burden of proof?

Does this not constitute arbitrary action rendering the regulation void as regards the limitation of the permitted derogation to vessels that have fished with driftnets in the North-East Atlantic during the two years preceding the entry into force of the regulation at issue?

3. Is it not the case that the limit to the derogation, which is apparently without foundation, is also contrary to the principle of relative stability and to the objectives of the common policy, especially since French vessels fishing for long-finned albacore tuna with driftnets seem to be the only vessels to have been fishing during at least the two years preceding the entry into force of the regulation and hence to fall within that derogation?

4.1. Is it not the case that the regulation at issue is unlawful, since its basis is ecological although it is a regulation 'amending for the 11th time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources' which itself is the implementing regulation for the basic regulation, Regulation No 170/83 'establishing a Community system for the conservation and management of fishery resources' ?

4.2. May the regulation also have been validly adopted, even on ecological bases, without any scientific foundation, but as a result apparently of the pressures of certain ecological multinational groups which have large financial resources and take part in extensive lobbying, as Mr Marin, member of the Commission of the European Communities responsible for fisheries, has pointed out, whereas it has not been shown at all that their action is more or less based on reason and whereas other ecological associations defend fishermen who have been seeking a limitation to five nautical miles?

5. Consequently, can the regulation have been validly adopted on the basis of 'the concern expressed by ecological organizations and many fishermen, including those of the Community ...' ?

Is this not an arbitrary decision which penalizes the weaker for the benefit of the stronger?

6. Is it not the case that there is discrimination between fishermen considering that the regulation applies everywhere, including the Atlantic, which is within the jurisdiction of the International Commission for the Conservation of Atlantic Tunas, and not in the Baltic Sea, the Belts and the Sound, which are within the jurisdiction of the International Baltic Sea Fishery Commission?

Are these not comparable situations which have to be dealt with in an identical manner?

7.1. Is there not an inconsistency between the 14th recital, referring to the United Nations resolution, which, moreover, is not binding, and the prohibition?

7.2. May the Convention on the conservation of European wildlife and natural habitats (Berne Convention) constitute a reason for the regulation at issue, when it seems to prohibit solely deliberate capture or the use of nets where they are used to capture or kill, massively or non-selectively, certain protected species, including dolphins, the mammals referred to by the ecologists?

Is this not therefore a further instance of the 16th recital in the preamble to the regulation at issue being inconsistent with the body of the regulation?

7.3. Is the regulation entitled to reduce fishing activities when it claims that it is necessary only to avoid 'uncontrolled expansion and growth' (18th recital)?"

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the relevant provisions, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

10 It appears from the questions referred to the Court for a preliminary ruling that Armement Islais is challenging the validity of Article 1(8) of Regulation No 345/92, essentially on the grounds that the Community has no competence to regulate conservation of the fishery resources of the high seas, that the Council could not adopt the regulation solely on the basis of the provisions relating to the common fisheries policy, that the prohibition of nets more than 2.5 km long is unlawful, that the provision at issue could not validly limit the derogation from that prohibition which it provides and, lastly, that the provision causes discrimination between fishermen of different Member States. These points must therefore be examined one by one.

The Community' s competence to regulate the conservation of the fishery resources of the high seas (Questions 1.1. and 1.2.)

The legal basis of Regulation No 345/92 (Questions 4.1., 4.2. and 5.)

of the world' s oceans and seas, adopted by the General Assembly of the United Nations on 22 December 1989. That resolution, which invited the members of the international community to impose "moratoria ... on all large-scale pelagic driftnet fishing" by 30 June 1992 and recommended that "further expansion of large-scale pelagic driftnet fishing on the high seas of the North Pacific and all the other high seas outside the Pacific Ocean should cease immediately", is based, according to its preamble, on the fact that fishing with such nets is "widely considered to threaten the effective conservation of living marine resources ...".

The prohibition of nets more than 2.5 kilometres long (Questions 2.1., 2.2., 2.3., 7.1., 7.2. and 7.3.)

29 Armement Islais considers, in the first place, that the prohibition of driftnets more than 2.5 kilometres long is not justified on scientific grounds. It claims that the regulation containing that prohibition does not refer to any scientific data or to any scientific report. Moreover, according to the scientific advice available, the threat to the stocks of albacore tuna in the North-East Atlantic, which the prohibition was supposed to address, is apparently non-existent.

32 As regards the Council' s duty to take scientific data into account, the Court has already ruled that judicial review must, having regard to the discretionary power conferred on the Council in the implementation of the common agricultural policy, be limited to examining whether the measure in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceeded the limits of its discretion (Case C-331/88 Fedesa [1990] ECR I-4023, paragraph 8).

33 As regards the regulation at issue, it must be noted first that the available scientific advice was confined to examining the situation of stocks of albacore tuna and the interaction of different fishing appliances and was not concerned with the problem of the balanced exploitation of all the biological resources of the sea on a lasting basis and in appropriate economic and social conditions, which is one of the objectives of the common fisheries policy referred to in Article 1 of Regulation No 170/83.

34 It is also clear from the preamble to Regulation No 345/92 that the prohibition in question was formulated by the Council in the light of the Community' s international duty to cooperate in the conservation and management of the living resources of the high seas, in order to take account of the increase in fishing and protect the various stocks of fish.

35 Moreover, it is not disputed that these considerations have caused many States and international organizations to prohibit large-scale driftnets or to recommend that they be prohibited because their use leads to substantial by-catches.

36 In adopting the measure at issue, the Council was therefore merely complying with a widely held international opinion. In these circumstances, it cannot be accused of having exceeded the limits of its discretion, in prohibiting the use of driftnets more than 2.5 kilometres long.

37 Armement Islais considers, in the second place, that some of the recitals in the preamble to Regulation No 345/92 are wrong and therefore cannot constitute a valid basis for the prohibition of nets more than 2.5 kilometres long.

38 It claims first that Resolution 44/225, adopted by the General Assembly of the United Nations on 22 December 1989 and referred to in the 14th recital in the preamble to the regulation, cannot validly be cited to justify the adoption of that regulation. It points out that the resolution relates only to large-scale pelagic driftnets whose length can exceed 50 kilometres, whereas French fishermen have voluntarily agreed to limit the length of nets to five nautical miles and in fact use nets no more than seven kilometres long.

39 Armement Islais also claims that the Berne Convention on the conservation of European wildlife and natural habitats, cited in the 16th recital in the preamble to the regulation at issue, is not relevant either. It points out that that convention confines itself to prohibiting the capture or massive and indiscriminate killing of certain protected species, whereas the use of driftnets has no such effect.

40 Lastly, it claims that the 18th recital, which speaks of the need to avoid the uncontrolled expansion and growth of driftnetting, cannot validly justify a reduction in fishing by vessels that have already used such nets.

41 These arguments, too, must be rejected.

42 As regards Armement Islais' s claim concerning the 14th recital in the preamble to the regulation, it must be pointed out that, although United Nations Resolution 44/225 mentions large-scale pelagic driftnets whose length can exceed 50 kilometres, it does not define the concept of large-scale driftnets and contains nothing to suggest that nets more than 2.5 kilometres long are excluded from its ambit.

43 It should be added that the Scientific and Technical Committee for Fisheries, provided for in Article 12 of Regulation No 170/83, regards as large-scale nets any nets whose total length exceeds approximately one kilometre. Moreover, the Convention on the Prohibition of Driftnet Fishing in the South Pacific, concluded at Wellington on 24 November 1989, applies to driftnets exceeding 2.5 km in length.

44 As regards the argument that the Berne Convention is not relevant for the purposes of justifying the prohibition at issue, it must be pointed out that Article 8 of that convention requires the Contracting Parties to prohibit the use of all indiscriminate means of capture and killing and the use of all means capable of causing local disappearance of, or serious disturbance to, populations of a species. As already mentioned (in paragraph 36 above), it is a widely held international opinion that the use of large-scale driftnets is an indiscriminate fishing method, which results in substantial by-catches that threaten the survival of species other than the target species.

45 As regards Armement Islais' s argument concerning the 18th recital in the preamble to the regulation, suffice it to say that the Council could decide without exceeding the limits of its discretion that, in view of the foreseeable increase in fishing with driftnets, it was necessary to introduce a limitation on the length of driftnets, applicable to all fishermen, in order to protect the various stocks of fish.

The limitation of the derogation from the prohibition on nets more than 2.5 kilometres long (Questions 2.4., 2.5. and 3.)

46 Armement Islais claims that Article 1(8) of Regulation No 345/92 could not validly limit to five kilometres until 31 December 1993 the derogation from the prohibition on driftnets. It argues, essentially, that such a limitation is contrary to the principle of relative stability and to the objectives of the common fisheries policy.

47 In considering the merits of these claims, it should be recalled at the outset that the Court has consistently held that judicial review must, having regard to the discretionary power conferred on the Council in the implementation of the common agricultural policy, be limited to examining whether the measure in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceeded the limits of its discretion (Fedesa, cited above, paragraph 8).

48 In the present case, it must be concluded that there is nothing to support the view that, in limiting the derogation in question, the Council was guilty of a manifest error or misuse of powers or that it manifestly exceeded the limits of its discretion.

49 Thus, there can be no objection to the Community legislature' s limiting the derogation to vessels that have fished for albacore tuna with driftnets in the North-East Atlantic during at least the two years immediately preceding the entry into force of the regulation at issue, in order to provide a phase of adjustment for fishermen economically dependent on the use of such nets, as stated in the 20th recital in the preamble to Regulation No 345/92. The purpose of this transitional measure is to provide for a gradual reduction in the length of driftnets, in order to arrive by degrees at the regulation' s ultimate objective of limiting such nets to 2.5 kilometres.

52 Armement Islais also claims that the provision at issue is unlawful, inasmuch as it provides that the derogation may be extended only "in the light of scientific evidence showing the absence of any ecological risk linked thereto".

53 Suffice it to say, on this point, that the Community legislature is always free to amend its legislation, even without express authorization to do so.

Discrimination between fishermen (Question 6.)

54 According to Armement Islais, the new Article 9a causes discrimination between fishermen of the various Member States. Thus, in its opinion, the fact that, under paragraph 4 of that provision, the prohibition on driftnets more than 2.5 kilometres long does not apply to the Baltic Sea, the Belts and the Sound, means that fishermen in the North-East Atlantic are placed at an undue disadvantage compared with fishermen in the Baltic, who may use nets up to 21 kilometres long.

55 Suffice it to say, in this connection, that the provision in question does not apply to the Baltic because the Community' s authority does not extend to that sea. Following the Community' s accession to the Baltic Convention (OJ 1983 L 237, p. 5, and 1984 L 96, p. 42), the International Baltic Sea Fishery Commission has jurisdiction over all species occurring in that sea, as stated in the 22nd recital to Regulation No 345/92. On the other hand, as the Community is not yet a Contracting Party to the Convention for the Conservation of Atlantic Tunas, its authority to take measures to control fishing in the North-East Atlantic is unaffected. In these circumstances, the situation in the Baltic Sea cannot be compared with that in the North-East Atlantic and there cannot therefore be any discrimination between fishermen operating in one of those areas and those operating in the other.

56 Accordingly, it should be stated in reply to the national court' s questions that consideration of the questions raised has disclosed no factor of such a kind as to affect the validity of Article 1(8) of Council Regulation (EEC) No 345/92 of 27 January 1992 amending for the 11th time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources.

Costs

57 The costs incurred by the Council and by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Tribunal de Commerce, La Roche-sur-Yon, by judgment of 24 November 1993, hereby rules:

Consideration of the questions raised has disclosed no factor of such a kind as to affect the validity of Article 1(8) of Council Regulation (EEC) No 345/92 of 27 January 1992 amending for the 11th time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources.