Avis juridique important

Judgment of the Court (Fifth Chamber) of 14 November 2002. - Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. - Failure by a Member State to fulfil its obligations - Fisheries - Conservation and management of fishery resources - Control measures for fishing activities. - Case C-454/99. European Court reports 2002 Page I-10323

Parties Grounds Decision on costs Operative part

In Case C-454/99,

Commission of the European Communities, represented by T. van Rijn and K. Fitch, acting as Agents, with an address for service in Luxembourg,

applicant,

v

United Kingdom of Great Britain and Northern Ireland, represented by R. Magrill, acting as Agent, and M. Hoskins, Barrister, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, in respect of each of the years 1985 to 1988 and 1990, by:

- failing to put in place appropriate detailed rules for the utilisation of the quotas allocated to it,

- failing to carry out inspections and other controls as required by the relevant Community regulations,

- failing provisionally to close certain fisheries when the quota was exhausted,

- failing (in 1988 only) to take sufficient measures to prevent the misreporting of landings of mackerel, and

- failing to take administrative or penal action against the masters of ships infringing the regulations or any other person responsible for those infringements,

the United Kingdom of Great Britain and Northern Ireland has failed to comply with its obligations under Article 5(2) of Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (OJ 1983 L 24, p. 1) and Article 1(1) of Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States (OJ 1982 L 220, p. 1) (up to 1 August 1987) and Article 1(1) of Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (OJ 1987 L 207, p. 1) (thereafter), as well as Article 10(2) of Regulation No 2057/82 and Article 11(2) of Regulation No 2241/87; Article 9 of Regulation No 2241/87; and Article 1(2) of Regulation No 2057/82 or Article 1(2) of Regulation No 2241/87, in conjunction with Article 5(2) of Regulation No 170/83,

THE COURT

(Fifth Chamber),

composed of: M. Wathelet, President of the Chamber, C.W.A. Timmermans, A. La Pergola (Rapporteur), P. Jann and S. von Bahr, Judges,

Advocate General: C. Stix-Hackl,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 5 March 2002,

gives the following

Judgment

1 By application lodged at the Court Registry on 30 November 1999, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, in respect of each of the years 1985 to 1988 and 1990, by:

- failing to put in place appropriate detailed rules for the utilisation of the quotas allocated to it,

- failing to carry out inspections and other controls as required by the relevant Community regulations,

- failing provisionally to close certain fisheries when the quota was exhausted,

- failing (in 1988 only) to take sufficient measures to prevent the misreporting of landings of mackerel, and

- failing to take administrative or penal action against the masters of ships infringing the regulations or any other person responsible for those infringements,

the United Kingdom of Great Britain and Northern Ireland has failed to comply with its obligations under Article 5(2) of Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (OJ 1983 L 24, p. 1) and Article 1(1) of Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States (OJ 1982 L 220, p. 1) (up to 1 August 1987) and Article 1(1) of Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (OJ 1987 L 207, p. 1) (thereafter), as well as Article 10(2) of Regulation No 2057/82 and Article 11(2) of Regulation No 2241/87; Article 9 of Regulation No 2241/87; and Article 1(2) of Regulation No 2057/82 or Article 1(2) of Regulation No 2241/87, in conjunction with Article 5(2) of Regulation No 170/83.

Law

2 Regulation No 170/83, repealed with effect from 1 January 1993 by Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1), had as its objective, under the first paragraph of Article 1, `to ensure the protection of fishing grounds, the conservation of the biological resources of the sea and their balanced exploitation on a lasting basis and in appropriate economic and social conditions'.

3 In accordance with Articles 2(2)(d) and 3 of Regulation No 170/83, the measures adopted under that system may include the restriction of the fishing effort, in particular by limits on the `total allowable catch' (hereinafter `TAC'). Where TACs are deemed necessary, they are fixed each year, at the end of December, through regulations adopted by the Council acting on a proposal from the Commission. Those regulations fix, for the following calendar year, the TAC for the whole of the Community and the quota allocated to each Member State. The TAC and the quotas are established by stock, that is to say, by species for a given zone.

4 Article 5(2) of Regulation No 170/83 states:

`Member States shall determine, in accordance with the applicable Community provisions, the detailed rules for the utilisation of the quotas allocated to them. ...'

5 Regulation No 2057/82 laid down, for catches by fishing vessels flying the flag of, or registered in, a Member State, rules for checking the observance of the limits fixed for permissible levels of fishing. That regulation included measures requiring the inspection of fishing vessels and their activities at sea and in port by the authorities of the Member States, as well as the notification to the Commission of the results of those inspections.

6 Article 1(1) and (2) of Regulation No 2057/82 provided:

`1. Each Member State shall, within ports situated in its territory and within maritime waters subject to its sovereignty or jurisdiction, inspect fishing vessels flying the flag of, or registered in, a Member State in order to ensure compliance with all the regulations in force concerning conservation and control measures.

2. If the competent authorities of a Member State observe, as a result of an inspection carried out by them under paragraph 1, that a fishing vessel flying the flag of, or registered in, a Member State does not comply with the relevant regulations concerning conservation and control measures, they shall take penal or administrative action against the skipper of such a vessel.'

7 Council Regulation (EEC) No 3723/85 of 20 December 1985 amending Regulation (EEC) No 2057/82 (OJ 1985 L 361, p. 42), which came into force on 1 January 1986, extended the obligation for Member States to take penal or administrative action for failure to comply with the conservation and control measures laid down in Article 1(2) of Regulation No 2057/82 so as to require them explicitly to take action against not only the master of the vessel, but also `any other person responsible'.

8 Article 1(1) and (2) of Regulation (EEC) No 2057/82 was again amended by Council Regulation (EEC) No 4027/86 of 18 December 1986 (OJ 1986 L 376, p. 4). The amended version which came into force on 1 January 1987 reads as follows:

`1. In order to ensure compliance with all the regulations in force concerning conservation and control measures, each Member State shall, within its territory and within maritime waters subject to its sovereignty or jurisdiction, monitor fishing activity and related activities. It shall inspect fishing vessels and all activities whose inspection would enable verification of the implementation of this regulation, including the activities of landing, selling and storing fish and recording landings and sales.

2. If the competent authorities of a Member State observe, as a result of monitoring or inspection carried out by them under paragraph 1, that the relevant rules concerning conservation and control measures are not being complied with, they shall take penal or administrative action against the master of such a vessel or any other person responsible.'

9 Article 10(1) and (2) of Regulation No 2057/82 provides:

`1. All catches of a stock or group of stocks subject to quota made by fishing vessels flying the flag of a Member State or registered in a Member State shall be charged against the quota applicable to that State for the stock or group of stocks in question, irrespective of the place of landing.

2. Each Member State shall determine the date from which the catches of a stock or group of stocks subject to quota made by the fishing vessels flying its flag or registered in that Member State shall be deemed to have exhausted the quota applicable to it for that stock or group of stocks. As from that date, it shall provisionally prohibit fishing for that stock or group of stocks by such vessels as well as the retention on board, the transhipment and the landing of fish taken after that date and shall decide on a date up to which transhipments and landings or final notifications of catches are permitted. The Commission shall forthwith be notified of this measure and shall then inform the other Member States.'

10 Regulation No 2057/82 was replaced, with effect from 1 August 1987, by Regulation No 2241/87, which in the interest of clarity consolidated Regulation No 2057/82, following substantial amendments made to it concerning the inspection and control of fishing activities. Regulation No 2241/87, which was in turn repealed with effect from 1 January 1994 by Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 L 261, p. 1), includes, inter alia, Articles 1 and 11, whose wording is identical to that of Articles 1 and 10 of Regulation No 2057/82 as amended by Regulation No 4027/86.

11 Article 9 of Regulation No 2241/87 provides:

`1. Member States shall ensure that all landings by fishing vessels flying the flag of, or registered in, a Member State of stocks or groups of stocks subject to TACs or quotas are recorded. ...

...

2. Before the 15th of each month, each Member State shall notify the Commission of the quantities of each stock or group of stocks subject to TACs or quotas landed during the preceding month and shall provide it with any information received under Articles 7 and 8.

Notifications to the Commission shall indicate the location of the catches as laid down in Articles 5 and 6 and the nationality of the fishing vessels concerned.

Without prejudice to the other provisions of this paragraph Member States shall, at the request of the Commission where catches of stocks or groups of stocks subject to TACs or quotas may reach TAC or quota levels, provide more detailed or more frequent information than this paragraph requires.

3. The Commission shall inform Member States of the notifications received pursuant to this article within 10 days of the date on which it received them.

4. Each Member State shall keep, or cause to be kept, records submitted to its competent authorities in accordance with Articles 5 and 6 and the particular detailed rules for the application of those articles, in such a way as to be able to trace back such documents, which form the basis of the notification to the Commission referred to in paragraph 2, over a period of three years from the beginning of the year following the year in which the related landings were made.'

Pre-litigation procedure

12 In accordance with Article 169 of the EC Treaty (now Article 226 EC), the Commission sent the United Kingdom letters of formal notice on 2 October 1986, 13 May 1987 and 26 March 1991 concerning the overfishing of certain stocks in 1985; on 28 September 1987 and 26 March 1991 concerning the overfishing of certain stocks in 1986; on 10 April 1989 and 26 March 1991 concerning the overfishing of certain stocks in 1987; on 28 May 1991 concerning the overfishing of certain stocks in 1988 and on 18 February 1993 concerning the overfishing of certain stocks in 1990.

13 In those letters, the Commission drew the attention of the United Kingdom to the fact that catches by fishermen from that Member State during the years in question had exceeded the quantities allocated to it and, in particular, that the United Kingdom had not taken, or taken with undue delay, the measures necessary to avoid overfishing, in breach of the Community law in force. The United Kingdom authorities were asked in the letters to submit their observations within a month of their receipt.

14 The United Kingdom Government replied on 9 December 1986, 11 June 1987 and 16 May 1991 to the relevant letters of formal notice concerning overfishing in 1985; on 10 November 1987 and 16 May 1991 concerning overfishing in 1986; on 28 June 1989 and 16 May 1991 concerning overfishing in 1987; on 22 July 1991 concerning overfishing in 1988 and on 19 April 1993 concerning overfishing in 1990.

15 In its letters of reply, it put forward a number of reasons to explain the cases of overfishing at issue, such as unpredictable and unexpected landings of stocks, bad weather conditions and late reporting of landings in Spain by fishing vessels flying the United Kingdom flag or registered in that Member State whose real owner was established in Spain, and operating out of Spanish ports (hereinafter `vessels operating out of Spain').

16 Since the Commission considered that the United Kingdom authorities had failed to take the measures necessary to resolve the problems of overfishing covered by its complaints, it sent those authorities four reasoned opinions: on 21 November 1988 as regards the infringements it claims took place in 1985; 9 February 1989 for those in 1986; 1 October 1992 for those in 1985, 1986 and 1987; and 17 April 1996 for those in 1988 and 1990.

17 In those reasoned opinions, the Commission states that none of the arguments raised by the United Kingdom authorities in response to its letters of formal notice could exempt that Member State from its responsibility for overfishing during the periods in question.

18 The United Kingdom authorities replied to the reasoned opinions by letters of 8 February 1989, 17 April 1989 and 5 February 1993 in respect of the complaints relating to the years 1985 to 1987 and by letter of 13 June 1996 in respect of the years 1988 and 1990. They contended that the problems which arose between 1985 and 1987 were caused by vessels operating out of Spain and that improvements had been made to the system for controlling and monitoring those vessels, as made clear by the fact that, in 1991, no overfishing by them had been observed. The United Kingdom therefore maintained that it had adopted the necessary measures to avoid subsequent overfishing. In addition, the overfishing for 1990, which had occurred despite the adoption of the necessary measures prior to the relevant quotas being exhausted, was the result of sudden, unexpected increases in landings.

19 Since it considered that, during the five years at issue, the United Kingdom had failed to fulfil its obligations under the applicable Community rules, the Commission decided to bring the present action.

The application

20 The Commission's application contains tables listing the stocks which gave rise to 27 cases of overfishing or fishing in zones for which the United Kingdom had no quota. Each table lists the stocks at issue, the quota allocated to that Member State - or absence of a quota - and the amount of overfishing for each of the years in question.

21 For the period from 1985 to 1988 and for the year 1990, the Commission has set out the following five complaints against the United Kingdom:

- the absence of specific detailed rules for the utilisation of quotas, in breach of Article 5(2) of Regulation No 170/83;

- the absence of control measures, in breach of Article 1(1) of Regulation No 2057/82 for the period up to 1 August 1987 and Article 1(1) of Regulation No 2241/87 for the following period;

- the belated prohibition of fishing, in breach of Article 10(2) of Regulation No 2057/82 for the period up to 1 August 1987 and Article 11(2) of Regulation No 2241/87 for the following period;

- the absence (in 1988 only) of sufficient measures to prevent the misreporting of landings of mackerel, in breach of Article 9 of Regulation No 2241/87; and

- the failure to take administrative or penal action, in breach of Article 1(2) of Regulation No 2057/82, in its successive versions, in the period up to 1 August 1987 and Article 1(2) of Regulation No 2241/87 for the following period.

22 The first and second complaints should be considered jointly.

Failure to put in place appropriate detailed rules for the utilisation of quotas, and the absence of control measures

Arguments of the parties

23 The Commission claims that the United Kingdom failed to ensure that fishermen declare all their catches to the competent authorities. It also failed to establish a system to rapidly analyse all the information collected, which would make it possible provisionally to prohibit fishing in time to prevent quotas from being exceeded, to ensure that fishermen really stop the fishing and landing of stocks from the time the prohibition takes effect and to ensure that vessels operating out of Spain make regular stopovers in the United Kingdom in order to submit to inspection.

24 The Commission maintains that, far from representing isolated incidents occurring within a fundamentally sound system, the 27 cases of overfishing or fishing in zones for which the United Kingdom had no quota which are described in the application are indicative of systematic shortcomings in the general system put in place by the United Kingdom.

25 The United Kingdom Government does not challenge the finding that considerable overfishing took place in each of the five years at issue and accepts, with two exceptions, the figures given by the Commission in its application. It denies, however, that the competent national authorities failed to ensure compliance with the provisions cited by the Commission and that the non-compliance with fishing quotas was therefore the result of failures to fulfil the specific obligations imposed by the Community rules.

26 It considers that the Commission did not satisfy its obligation to provide evidence for the general allegations which form the basis of the alleged infringement. In particular, it based its action on a limited number of observed cases of overfishing. However, according to the settled case-law of the Court, the Commission cannot rely on a mere presumption to prove that a Member State failed to fulfil its obligations under Community law. In addition, it should have specifically instructed the United Kingdom that it had to adopt specific measures if it intended to make the failure to adopt those measures the subject-matter of its action for infringement.

Findings of the Court

27 It should be observed at the outset that Article 226 EC enables the Commission to institute proceedings for failure to fulfil obligations each time it considers that a Member State has failed to fulfil an obligation under Community law, without its being required to draw distinctions based on the nature or gravity of the infringement, since such proceedings are based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation (see Case 301/81 Commission v Belgium [1983] ECR 467, paragraph 8; Case C-209/88 Commission v Italy [1990] ECR I-4313, paragraph 13; Case C-71/97 Commission v Spain [1998] ECR I-5991, paragraph 14, and Case C-333/99 Commission v France [2001] ECR I-1025, paragraphs 32 and 33).

28 Article 5(2) of Regulation No 170/83 states that Member States are to determine, `in accordance with the applicable Community provisions, the detailed rules for the proper utilisation of the quotas allocated to them'. In that context, Article 1(1) of Regulation No 2057/82 as amended by Regulations No 3723/85 and No 4027/86, for the period up to 1 August 1987, and Article 1(1) of Regulation No 2241/87 for the following period, impose on Member States the obligation to adopt inspection measures such as to ensure compliance with all the rules adopted in respect of the Community system for the conservation and management of fishery resources. The adoption of those measures was therefore necessary in order to guarantee the operation of that system and, in particular, compliance with the quotas allocated to Member States.

29 In the present case, the Commission has provided, in support of its application, detailed data concerning stocks by species of fish and zone, as well as the quota allocated and the tonnage recorded for overfishing or unauthorised fishing. Those data are sufficient to establish six cases of overfishing, totalling 1 217 tonnes, and three cases of fishing in unauthorised zones, totalling 140 tonnes, in 1985; four cases of overfishing, totalling 752 tonnes, and one case of fishing in an unauthorised zone, totalling one tonne, in 1986; two cases of overfishing, totalling 2 606 tonnes, and six cases of fishing in unauthorised zones, totalling 274.1 tonnes, in 1987; one case of overfishing of mackerel in 1988, totalling 23 620 tonnes, and four cases of overfishing in 1990, totalling 389 tonnes.

30 The United Kingdom does not challenge the Commission's finding that considerable overfishing took place in each of the five years in question and accepts, with two exceptions, the figures set out by the Commission in its application.

31 The scale of those figures and the reoccurrence of the situation which they describe indicate that the instances of overfishing could only have resulted, first, from the absence of appropriate detailed rules for the utilisation of fishing quotas and, secondly, from failure by the Member State concerned to comply with its monitoring obligations (see Commission v France, cited above, paragraph 35).

32 In those circumstances, the argument of the United Kingdom Government that the Commission is relying on a mere assumption and a limited number of cases of overfishing cannot be accepted.

33 It must therefore be held that in respect of each of the years 1985 to 1988 and 1990, by failing to put in place specific detailed rules for the utilisation of the quotas allocated to it and to carry out the inspections and other controls required by the relevant Community regulations, the United Kingdom has failed to comply with its obligations under Article 5(2) of Regulation No 170/83, Article 1(1) of Regulation No 2057/82 as amended by Regulations No 3723/85 and No 4027/86 for the period up to 1 August 1987, and Article 1(1) of Regulation No 2241/87 for the following period.

Failure to close fisheries in time

Arguments of the parties

34 The Commission claims that it is settled case-law that Article 10 of Regulation No 2057/82 and Article 11 of Regulation No 2241/87 require the Member State concerned to take all the necessary measures in time to prevent overfishing by vessels flying its flag or registered in its territory. Practical difficulties which prevent the competent authorities from foreseeing the imminent exhaustion of quotas cannot be put forward to justify a breach of that obligation. Moreover, information as to the level of catches at the time when prohibitions relating to stocks whose quota is exhausted come into force satisfies the obligation to prove the breach in question. According to the Commission, only that date is decisive in the present case.

35 The United Kingdom Government does not deny that, in the five cases described by the Commission, the quotas had been exceeded at the time when the respective prohibitions came into force. None the less, it contends that the fact that it did not prohibit fishing in time to prevent the quota being exceeded can constitute an infringement only if the exhaustion of the quota at issue was foreseeable. The Commission failed to take account of several facts, such as landings in Spain and fluctuations in the quantities landed in other Member States or in third countries, which the abovementioned Government put forward during the pre-litigation procedure and which demonstrates that the exhaustion of the quotas in question was difficult to foresee. In addition, the Commission did not provide any figures to substantiate its contention concerning late failure to close fisheries for the years 1985 to 1987.

Findings of the Court

36 First, the Court has already held that Article 10(2) of Regulation No 2057/82 and Article 11(2) of Regulation No 2241/87 require the Member States to take binding measures in order provisionally to prohibit all fishing activities even before quotas have been exhausted. It follows from those provisions that Member States are required to take all the necessary measures in time to prevent the quotas in question being exceeded, in order to ensure compliance with the quotas allocated to them for the purpose of conserving fishery resources (see Case C-62/89 Commission v France [1990] ECR I-925, paragraph 17; Case C-52/95 Commission v France [1995] ECR I-4443, paragraphs 29 and 30, and Joined Cases C-418/00 and C-419/00 Commission v France [2002] ECR I-3969, paragraph 58).

37 It is sufficient to note in that regard that the United Kingdom Government does not deny that, in the five cases described by the Commission, the quotas had been exceeded at the time the respective prohibitions came into force, and as regards the other cases of overfishing, it does not deny that no prohibition measure was adopted by the national authorities before the quotas were exceeded.

38 Secondly, the Court has consistently held that a Member State cannot rely on practical difficulties in order to justify its failure to adopt in time appropriate measures to prohibit fishing. On the contrary, it is required to overcome those difficulties by adopting such measures (see Case C-333/99 Commission v France, cited above, paragraph 44).

39 It follows that the practical difficulties put forward by the United Kingdom Government, such as landings in Spain and fluctuations in the amounts landed in other Member States or in third countries, cannot be taken into account.

40 Therefore, in respect of each of the years 1985 to 1988 and 1990, by failing provisionally to close certain fisheries when the quotas had been exhausted, the United Kingdom failed to fulfil its obligations under Article 10(2) of Regulation No 2057/82 for the period up to 1 August 1987 and Article 11(2) of Regulation No 2241/87 for the following period.

Failure to take sufficient measures to prevent the misreporting of landings of mackerel in 1988

Arguments of the parties

41 The Commission states that Article 9 of Regulation No 2241/87 requires each Member State not only to record the landings of stocks by fishing vessels flying the flag of that Member State or registered therein and to notify them to the Commission before the 15th of each month, but also to ensure that the recording and the notification reflect actual landings and that the fishing zones where the catches take place are accurately indicated. The United Kingdom authorities failed to take sufficient measures to prevent the misreporting of catches of mackerel in 1988 or to enable them to be corrected in time.

42 The United Kingdom Government contends that the Commission has not proved that the notifications of catches by fishing vessels flying the flag of that Member State contained inaccurate information as to the location of catches. The Commission relied on an estimate in determining the level of overfishing. Moreover, the essential obligation imposed on Member States by Article 9(2) of Regulation No 2241/87 is merely to notify the relevant information to the Commission, on the basis of the information contained in logbooks and landing declarations - an obligation which the United Kingdom meticulously fulfilled.

43 The claim that the United Kingdom failed to correct the information initially notified is wholly unfounded, since it is impossible to establish exact figures for any catches to be reallocated, even where a thorough inquiry has been carried out by the national authorities and the Commission's inspectors.

44 The Commission states that the main purpose of the system for reporting catches is to give it and the Member States a clear idea of the overall development of fishing, so as to make possible the adoption of the measures necessary to prevent quotas being exceeded. The Member States are therefore required to provide the most reliable statistics possible, taking into account cases of unreported or misreported catches or other problems which may have come to their attention.

45 In its rejoinder, the United Kingdom Government contends that the pleas in law concerning the alleged infringement of Article 9(4) of Regulation No 2241/87 were introduced for the first time in the reply and should therefore be declared inadmissible pursuant to Article 42(2) of the Court's Rules of Procedure.

Findings of the Court

46 First, it should be noted that the proper functioning of the Community regime for TACs and fishing quotas depends in essence on the effectiveness of the controls on landings and the reliability of the information gathered by the Member States, which is also an indispensable condition for ensuring that the Commission can carry out its supervisory responsibilities.

47 In that context, Article 9(1) and (2) of Regulation No 2241/87 requires the Member States to ensure that all landings of stocks or groups of stocks subject to TACs or quotas are recorded and to notify that information to the Commission.

48 Those provisions cannot therefore be interpreted as merely laying down an obligation to provide the information which the Member States have gathered within the time-limit set. On the contrary, the Member States must ensure that the information notified is correct.

49 Consequently, the arguments by the United Kingdom that Article 9(2) of Regulation No 2241/87 merely imposes on Member States the obligation to notify the information set out in logbooks without verifying it, that the Commission acted on the basis of mere estimates and that it would have been impossible to obtain exact figures for quantities to be reallocated cannot be accepted.

50 Secondly, it follows from the inquiries conducted by the United Kingdom authorities and by the Commission that, of the total amount of mackerel declared by the United Kingdom for the year 1988, over 32 000 tonnes were not correctly recorded in logbooks or landing declarations. Moreover, the United Kingdom admits that the information recorded for where catches took place was, at least in part, incorrect and that there were a number of discrepancies between the information relating to where mackerel were caught in 1988, which was obtained by the national authorities during their inquiries and subsequently notified to the Commission, and the entries in logbooks.

51 In those circumstances, the information which the Commission put forward in its application is sufficient to establish that, for the year 1988, the United Kingdom failed to ensure that all landings of mackerel were duly recorded by the national authorities.

52 As regards the plea based on infringement of the obligation laid down in Article 9(4) of Regulation No 2241/87 to keep the documents which form the basis of notifications, it is not necessary to consider whether that constitutes a new plea. It is sufficient to note that, in any event, the Commission failed to provide any evidence of a breach of the specific obligation laid down in that provision.

53 Consequently, by failing (in 1988 only) to take sufficient measures to prevent the misreporting of landings of mackerel, the United Kingdom failed to fulfil its obligations under Article 9(1) and (2) of Regulation No 2241/87.

Failure to take penal or administrative action

Arguments of the parties

54 The Commission claims that Article 1(2) of Regulation No 2057/82, as amended by Regulations No 3723/85 and No 4027/86, and Article 1(2) of Regulation No 2241/87 required the Member States to take penal or adminstrative action against any person who failed to comply with Community legislation relating to conservation and control. Practical difficulties, and the fact that the vessels responsible for the overfishing at issue operated almost entirely outside of the territorial waters of the United Kingdom, cannot excuse the failure to take such actions.

55 The United Kingdom Government contends that the Court has held that the Commission must, in order to prove an infringement of the abovementioned provisions, provide specific and concrete evidence that the competent authorities of the Member State systematically failed to take any measures against the master of a vessel or any other person reponsible for the infringements in question, despite sufficient evidence to warrant taking penal or administrative action.

56 As regards the complaint concerning the failure to take administrative or penal action against the masters of vessels operating out of Spain, the United Kingdom Government claims that the Spanish authorities were not able to provide it with the information which it had repeatedly requested concerning possible improper landings by those vessels recorded in the United Kingdom.

57 The Commission replies that the arguments put forward by the United Kingdom cannot be taken into account since the failure of the competent national authorities to take administrative or penal action was systematic in the present case: no action whatsoever had been taken against any person responsible, although infringements occurred over a period of five years.

58 In its rejoinder, the United Kingdom Government provides details of certain procedures which the national authorities initiated against the persons responsible for unlawful activities carried out in areas for which that Member State had no quota or after fishing for a particular species had been closed. It justifies its failure to provide that information to the Commission during the pre-litigation procedure by the fact that the Commission waited so long in bringing its case, which made it difficult to collect the information requested.

Findings of the Court

59 First, where Community legislation relating to the conservation and control of fishery resources has been infringed, the competent authorities of a Member State were required, under the rules set out in paragraphs 6 to 10 of the present judgment, to take penal or administrative action against the masters of the vessels concerned or, with effect from 1 January 1986, against the masters of those vessels or any other person responsible.

60 If the competent authorities of a Member State were systematically to refrain from taking action against the persons responsible for such infringements, both the conservation and management of fishery resources and the uniform application of the common fisheries policy would be jeopardised (C-52/95 Commission v France, cited above, paragraph 35).

61 Consequently, as from the dates fixed by the Commission for the prohibition of fishing during the years at issue, the United Kingdom was required to take penal or administrative action against the persons responsible for continuing fishing activities after they had been prohibited.

62 In the present case, it is unclear whether the United Kingdom notwithstanding the information provided by it in the annex to its rejoinder, was able to inform the Commission of any penal or administrative action which might have been undertaken, although a significant number of cases of illegal fishing were observed during the years in question. The argument put forward by the United Kingdom concerning the need for the Commission to provide specific evidence cannot, therefore, be upheld (Case C-52/95 Commission v France, cited above, paragraph 36).

63 As regards the argument concerning the practical difficulties due to the fact that most of the vessels flying the flag of the United Kingdom which are charged with overfishing were not operating in the territorial waters of that Member State, it should be recalled that, according to settled case-law, a Member State cannot plead provisions, practices or situations in its internal legal system to justify non-compliance with obligations arising from rules of Community law (see Case C-52/91 Commission v Netherlands [1993] ECR I-3069, paragraph 36, and Joined Cases C-418/00 and C-419/00 Commission v France, cited above, paragraph 59). That argument therefore cannot be upheld.

64 In those circumstances, in respect of each of the years 1985 to 1988 and 1990, by failing to take administrative or penal action against the masters of ships infringing the regulations or any other person responsible for those infringements, the United Kingdom failed to fulfil its obligations under Article 1(2) of Regulation No 2057/82 as amended by Regulations No 3723/85 and No 4027/86 for the period up to 1 August 1987 and Article 1(2) of Regulation No 2241/87 for the following period.

Costs

65 Under Article 69(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 Commission has asked for the United Kingdom to be ordered to pay the costs and the latter has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

(Fifth Chamber)

hereby:

1. Declares that, in respect of each of the years 1985 to 1988 and 1990, by

- failing to put in place specific detailed rules for the utilisation of the quotas allocated to it and to carry out the inspections and other controls required by the relevant Community legislation,

- failing provisionally to close certain fisheries when the quotas had been exhausted,

- failing (in 1988 only) to take sufficient measures to prevent the misreporting of landings of mackerel, and

- failing to take administrative or penal action against the masters of ships infringing the regulations or any other person responsible for those infringements,

the United Kingdom of Great Britain and Northern Ireland has failed to comply with its obligations under Article 5(2) of Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources and Article 1(1) of Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States (up to 1 August 1987) and Article 1(1) of Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (thereafter), as well as Article 10(2) of Regulation No 2057/82 (up to 1 August 1987) and Article 11(2) of Regulation No 2241/87 (thereafter); Article 9(1) and (2) of Regulation No 2241/87; and Article 1(2) of Regulation No 2057/82, as amended by Council Regulations (EEC) No 3723/85 of 20 December 1985 and No 4027/86 of 18 December 1986 (up to 1 August 1987) and Article 1(2) of Regulation No 2241/87 (thereafter);

2. Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.