Parties Grounds Operative part

In Joined Cases C‑87/03 and C‑100/03,

ACTIONS for annulment under Article 230 EC, brought on 27 and 28 February 2003,

Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,

applicant,

v

Council of the European Union, represented by G. Ramos Ruano and F. Florindo Gijón, acting as Agents,

defendant,

supported by

Commission of the European Communities, represented by T. van Rijn, F. Jimeno Fernandez and S. Pardo Quintillán, acting as Agents, with an address for service in Luxembourg,

United Kingdom of Great Britain and Northern Ireland, represented by D. Wyatt QC, and K. Manji, acting as Agent, with an address for service in Luxembourg,

interveners,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, J. Malenovský, J.‑P. Puissochet, S. von Bahr (Rapporteur) and U. Lõhmus, Judges,

Advocate General: P. Léger,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 4 May 2005,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1. By its applications, the Kingdom of Spain seeks the annulment of Council Regulation (EC) No 2341/2002 of 20 December 2002 fixing for 2003 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 2002 L 356, p. 12), in so far as that regulation does not allocate a number of quotas, relating to fishing opportunities, to the Kingdom of Spain which were allocated in the North Sea and the Baltic Sea after its accession to the European Community (Case C‑87/03) and in the North Sea following its accession to the European Community (Case C‑100/03).

Legal background and procedure

Act of accession of the Kingdom of Spain and the Portuguese Republic

2. Articles 156 to 166 of the Act concerning the conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23) (‘the Act of accession’) regulate, inter alia, the access of Spanish vessels to Community waters and their resources. It is clear from the provisions of Article 166 that the regime thus defined is applicable until 31 December 2002 (‘the transitional period’).

Regulations No 170/83 and No 172/83

3. Under 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), the legislature established rules for the distribution of the overall catch among the Member States. The objective of the Council of the European Union was, inter alia, to contribute to a greater stability of fishing activities. The fifth, sixth and seventh recitals in the preamble to that regulation indicate that the concept of relative stability is intended to safeguard the particular needs of regions where local populations are especially dependent on fisheries and related industries, given the temporary biological situation of stocks.

4. The Council allocated the stocks available in Community waters for the first time (‘the initial allocation’) under Council Regulation (EEC) No 172/83 of 25 January 1983 fixing for certain fish stocks and groups of fish stocks occurring in the Community’s fishing zone, total allowable catches for 1982, the share of these catches available to the Community, the allocation of that share between the Member States and the conditions under which the total allowable catches may be fished (OJ 1983 L 24, p. 30).

5. In order to facilitate a fair allocation of available resources according to the fourth recital in the preamble to Regulation No 172/83, the Council took particular account of traditional fishing activities, the specific needs of areas particularly dependent on fishing and its dependent industries and the loss of fishing potential in the waters of non-member countries.

Regulation No 3760/92

6. Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1), as amended by Council Regulation (EC) No 1181/98 of 4 June 1998 (OJ 1998 L 164, p. 1) (‘Regulation No 3760/92’), repeals Regulation No 170/83. Article 8(4)(i) thereof provides that the Council is to determine for each fishery or group of fisheries, on a case-by-case basis, the total allowable catch and/or the total allowable fishing effort, where appropriate on a multi-annual basis.

7. Article 8(4)(ii) of Regulation No 3760/92 provides that the Council is to distribute fishing opportunities between Member States in such a way as to assure each Member State relative stability of fishing activities for each of the stocks concerned. The notion of relative stability is described in the 12 th , 13 th and 14 th recitals in the preamble to the regulation. According to the 12 th recital, conservation and management of resources must contribute to a greater stability of fishing activities and must be appraised on the basis of a reference allocation reflecting the orientations given by the Council. The 13 th recital essentially repeats the wording of the preamble to Regulation No 170/83 mentioned in paragraph 3 of this judgment.

8. According to Article 8(4)(iii) of Regulation No 3760/92, where the Community establishes new fishing opportunities in a fishery or group of fisheries not previously prosecuted under the common fisheries policy, the Council is to decide on the method of allocation taking into account the interests of all Member States.

Regulation No 2341/2002

9. On 20 December 2002 the Council adopted Regulation (EC) No 2341/2002, which is the subject of these proceedings, on the basis, inter alia, of Article 8(4) of Regulation No 3760/92.

Regulation No 2371/2002

10. On 20 December 2002, the Council also adopted Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59), which repeals Regulation No 3760/92 with effect from 1 January 2003. Article 17(1) of Regulation No 2371/2002 provides that Community fishing vessels are to have equal access to waters and resources in all Community waters defined in that article, subject to the measures adopted to ensure the conservation of species of fish and their sustainability.

11. Under the heading ‘Allocation of fishing opportunities’, Article 20(1) of Regulation No 2371/2002 provides that the Council is to decide on catch and/or fishing effort limits and on the allocation of fishing opportunities among Member States as well as the conditions associated with those limits. Fishing opportunities are to be distributed among Member States in such a way as to assure each Member State relative stability in respect of fishing activities for each stock or fishery.

12. Article 20(2) provides that when the Community establishes new fishing opportunities the Council is to decide on the allocation for those opportunities, taking into account the interests of each Member State.

Background to the disputes and procedure

13. In the course of the negotiations in respect of Regulation No 2341/2002 relating to the fishing opportunities for 2003 the Kingdom of Spain, taking the view that it was entitled to participate in the allocation of the species subject to catch limitations in the North Sea and Baltic Sea from the end of the transitional period, applied to the Council for fishing quotas in those seas.

14. It claimed that the quotas allocated before and after its accession to the European Community, in the zone to which the Spanish fleet did not have access during the transitional period, had to be revised in order to take account of both its purely legal incapacity to participate in that allocation and the catches of the Spanish fleet in the North Sea in the period from 1973 to 1978.

15. The Council dismissed the Kingdom of Spain’s application.

16. In those circumstances the latter decided to bring these proceedings.

17. By orders of 27 June and 28 August 2003, the Commission of the European Communities and the United Kingdom of Great Britain and Northern Ireland were allowed to intervene in support of the forms of order sought by the Council in Cases C‑87/03 and C‑100/03.

18. By order of 4 April 2005, Cases C‑87/03 and C‑100/03 were joined for the purposes of the oral procedure and the judgment.

Forms of order sought by the parties

19. The Kingdom of Spain claims that the Court should:

– annul Regulation No 2341/2002, in so far as it fails to allocate certain fishing quotas in the North Sea and the Baltic Sea; and

– order the Council to pay the costs.

20. The Council, supported by the Commission, contends that the Court should:

– dismiss the action; and

– order the Kingdom of Spain to pay the costs.

The actions

21. By its actions the Kingdom of Spain claims that, since it did not obtain certain fishing quotas in the North Sea and the Baltic Sea under Regulation No 2341/2002, the Spanish fleet is in fact, and in spite of the end of the transitional period, unable to catch most of the species subject to quotas in those seas. The Spanish Government raises several pleas. Of those pleas, two are identical in the two joined cases, namely (i) breach of the principle of non‑discrimination and (ii) infringement of the Act of accession. In addition, it raises a third plea alleging infringement of Article 20(2) of Regulation No 2371/2002 in Case C‑87/03, and infringement of the principle of relative stability in Case C‑100/03.

22. Although infringement of the principle of relative stability is relied on as a separate plea only in Case C‑100/03, it is mentioned in both cases in support of the claims of discrimination and infringement of the Act of accession. It is appropriate, therefore, to examine that plea first in relation to both cases.

The plea and arguments alleging infringement of the principle of relative stability

Observations of the parties

23. The Spanish Government maintains that the principle of relative stability is of general application and applies, therefore, to the various quota allocations, but that the initial allocation dating from 1983 may be amended as a result of decisive events. The expiry of the transitional period constitutes such an event.

24. It follows that the Kingdom of Spain is now fully integrated into the common fisheries policy and therefore that the initial allocation, made before its accession to the European Community, should be amended so that it may be included in that allocation. Spanish vessels should therefore receive quotas which take account of two of the criteria used during the initial allocation, set out in paragraph 5 of this judgment, which are traditional fishing activities and the specific needs of areas particularly dependent on fishing and its dependent industries.

25. The Spanish Government points out that Spanish vessels were fishing in the North Sea between 1973 and 1976. It further submits that when the quotas were allocated for 2003, in accordance with the principle of relative stability, only the regions whose populations were especially dependent on fishing and related activities at that date should have been taken into account and not those regions which had those characteristics only at a particular time in the past.

26. The Council, the Commission and the United Kingdom submit that the allocation of quotas under Regulation No 2341/2002 fully complies with the aim of responsible exploitation of resources and the rules for allocation, established in accordance with the principle of relative stability.

Findings of the Court

28. The Court has also ruled on the consequences of the accession of a new Member State, in particular the accession of the Kingdom of Spain, to the European Community. It held that such an event cannot in itself produce legal effects, since the conditions of accession are set out in the Act of accession (see Case C‑70/90 Spain v Council , paragraph 16). As regards the Kingdom of Spain, it stated that, pursuant to Article 2 of the Act of accession, the acquis communautaire , that is to say the provisions of the original Treaties and the acts adopted by the institutions of the Communities before accession, must be applied, in particular the principle of relative stability as applied in 1983 (see Joined Cases C‑63/90 and C‑67/90 Portugal and Spain v Council [1992] ECR I‑5073, paragraphs 31, 32 and 34, and Case C‑70/90 Spain v Council , paragraphs 19 and 29).

29. It follows that the accession of the Kingdom of Spain did not require the Council to amend the existing allocation. To the contrary, the scale for allocation fixed prior to that accession is part of the acquis communautaire and, in the absence of any changes adopted by the Council, is applicable to that Member State.

30. The end of the transitional period, as defined by the Act of accession, can have only the legal effects laid down by that act. The latter does not provide for either an amendment to the scale for allocation which would take effect on the expiry of the transitional period or even for a duty on the part of the Council to review the scale at that moment. In the absence of specific provisions laid down in the Act of accession or an amendment adopted by the Council on the expiry of the transitional period, the existing scale for allocation, established in accordance with the principle of relative stability, continues to apply.

31. Furthermore, the fact that Spanish vessels fished in the North Sea between 1973 and 1976 cannot be relied on to justify an alteration to the scale for allocation. In fact, fishing stopped in 1977 as a result of the decision adopted by the Northern Coastal States to extend their exclusive fishing zones to 200 nautical miles, in the context of developments in international law of the sea. That position was subsequently maintained in the bilateral agreement concluded in 1980 between the Kingdom of Spain and the European Community, and subsequently in the Act of accession.

32. Therefore, as regards the scale for allocation of fishing opportunities fixed before the accession of the Kingdom of Spain to the European Community, the absence of any adjustments to that scale by a subsequent act of the Council, and in particular by Regulation No 2341/2002, is not contrary to the principle of relative stability.

33. It follows that the plea raised in Case C‑100/03, alleging infringement of that principle, must be dismissed.

34. Having regard to the considerations mentioned in paragraph 22 of this judgment, it is also appropriate to examine the arguments raised in Case C‑87/03 to the effect that the failure to revise the scale for allocation used to allocate quotas in the North Sea and the Baltic Sea for the first time after the accession of the Kingdom of Spain infringed that principle.

35. As regards those allocations it must be observed that the principle of relative stability, which is set out in Regulation No 3760/92, remains relevant.

36. The Council, supported by the Commission, submits that it has defined a recent and representative reference period covering several years and has examined the quantities caught by fishermen from Member States in order to take account of the needs of regions where local populations are especially dependent on fisheries. Since Spanish vessels have not been present in the waters concerned for many years, no quota was allocated to the Kingdom of Spain either at the time of the initial allocation or when the allocation for 2003 was made, in accordance with the principle of relative stability.

37. The Spanish Government submits, for its part, that that principle should be amended to take account of Spain’s interests. It argues, essentially, that rather than allocating quotas by maintaining the percentages fixed when allocations were made during the transitional period, at a time when the Kingdom of Spain could not be included in them, the Council should have taken account of the fishing activities of Spanish vessels between 1973 and 1976 and the needs of its populations which currently depend on fishing.

39. In the context of the substantial diminution of the species of fish observed by the Council and the Commission, it must be held, first of all, that the Council has not infringed the principle of relative stability by fixing a recent reference period covering several years in respect of the first allocation of quotas for certain species in the North Sea and the Baltic Sea. As is clear from paragraph 42 of the judgment in Case C-120/99 Italy v Council [2001] ECR I-7997, the Community legislature has a high degree of flexibility in that area.

41. Finally, the same applies with respect to the maintenance of that exclusion in the context of the allocation of fishing opportunities for 2003, having regard to the previous allocation and the fact, mentioned in paragraph 31 of this judgment, that Spanish vessels had not fished for the species concerned in the North Sea and the Baltic Sea for more than 20 years.

42. It follows that the arguments put forward in Case C‑87/03, relating to infringement of the principle of relative stability, must be dismissed.

The plea alleging an infringement of the principle of non-discrimination

Observations of the parties

43. The Spanish Government argues that, as from the expiry of the transitional period, Spanish vessels should have enjoyed equal access not only to Community waters, which is not contested, but also to their resources, which entails the allocation of fishing quotas in the North Sea and the Baltic Sea. By failing to allocate such quotas to the Kingdom of Spain, Regulation No 2341/2002 fails to comply with the requirements of equal treatment and gives rise to discrimination against Spanish fishermen.

44. No objective reason justifies that discrimination. The general rule of the full applicability of all Community law to new Member States from the time of their accession must be observed. Derogations from that rule provided for in an act of accession are temporary and should be strictly interpreted.

45. Whilst, prior to 31 December 2002 the Kingdom of Spain could not rely on fishing activities carried out by Spanish vessels in the waters of the North Sea during the reference period from 1973 to 1978 since the special regime provided for in the Act of accession applied, that was not the case after that date. Those activities should now be taken into consideration in order to modify the allocation of fishing opportunities in force up until its accession to the European Community and during the transitional period. Therefore, the Kingdom of Spain should have been allocated fishing quotas proportional to quantities the Spanish vessels caught before the entry into force of the Community system for conservation of fishery resources.

46. The Spanish Government adds that, were it not for the transitional period, the Kingdom of Spain would have participated in the allocation of new quotas carried out in 1986 on the basis of three factors: first, the catches by Spanish fishermen in the North Sea between 1973 and 1976, that is, the period taken into consideration when the principle of relative stability was first established, second, its catches of the same species in adjoining zones and, third, the needs of Spanish fishermen in respect of by-catches.

47. The Council, the Commission and the United Kingdom argue that Regulation No 2341/2002 does not give rise to discrimination against the Kingdom of Spain. It is treated in the same way as the Member States not included in the initial allocation of quotas made before their accession to the European Community, which constitute almost half of those States. The Council, the Commission and the United Kingdom point out that the Spanish Government fails to make the necessary distinction between access to Community waters and access to their resources.

Findings of the Court

49. The questions therefore arises as to whether the Kingdom of Spain’s situation is comparable to that of the Member States which have obtained fishing quotas in the waters of the North Sea and the Baltic Sea under Regulation No 2341/2002.

50. The Court has already had to consider the issue of possible discrimination against Member States which did not obtain certain fishing quotas after their accession to the European Community.

51. In paragraph 41 of the judgment in Portugal and Spain v Council , the Portuguese Republic argued that the Portuguese fleet had carried on fishing activities in Greenland waters from 1973 to 1977, that is, during part of the initial reference period, and pointed out that the quantities caught by its fleet were comparable to those caught by the German fleet and substantially higher than those caught by the United Kingdom fleet.

54. It must be added that the end of the transitional period does not change that situation in any way.

57. Accordingly, by not treating it in the same way as the Member States which participated in the initial allocation of fishing quotas prior to its accession, or in subsequent allocations during the transitional period, in Regulation No 2341/2002, the Council has not acted in a discriminatory manner towards the Kingdom of Spain.

58. Having regard to the foregoing considerations, the plea alleging infringement of the principle of non-discrimination must be dismissed.

Plea alleging infringement of the Act of accession

Observations of the parties

59. The Spanish Government takes the view that, by failing to allocate part of the fishing quotas which were allocated in respect of Community waters in the North Sea and the Baltic Sea to the Kingdom of Spain after its accession to the European Community, Regulation No 2341/2002 extends the transitional period beyond that provided for in the Act of accession and therefore infringes the provisions of that act.

60. Similar reasoning applies as regards the lack of revision in Regulation No 2341/2002 of the scale of allocations fixed for the North Sea before the accession of the Kingdom of Spain to the European Community.

61. The Spanish Government takes the view that extending the derogations provided for in the Act of accession beyond the transitional period set down in that act fails to have regard to their exceptional, transitional and limited nature, as well as their purpose, which is the gradual integration of a new Member State into the European Community.

62. The Council, the Commission and the United Kingdom submit, for their part, that the provisions of the Act of accession are no longer applicable from the expiry of the transitional period and, therefore, can no longer be a criterion for determining the legality of measures adopted by the Council.

63. Furthermore, the Act of accession neither requires nor provides for a revision of the system for allocating quotas.

Findings of the Court

65. Furthermore, it does not follow from the Act of accession that the Council had a duty to amend, in the future, the scale for allocation of fishing opportunities adopted before the accession of the Kingdom of Spain or, following its accession, during the transitional period.

67. Therefore, by failing to allocate certain fishing quotas in the North Sea, in accordance with Regulation No 2341/2002, to the Kingdom of Spain, the Council has in no way infringed the Act of accession.

68. Accordingly, the plea alleging an infringement of the Act of accession must be dismissed.

Plea alleging infringement of Article 20(2) of Regulation No 2371/2002

Observations of the parties

69. The Spanish Government argues that, from the expiry of the transitional period, new fishing opportunities allocated in the North Sea and the Baltic Sea from 1992 to 1998 are required to be distributed in accordance with Article 20(2) of Regulation No 2371/2002 taking account of the interests of each Member State and also, therefore, of the Kingdom of Spain.

70. The Spanish Government repeats in the context of this plea that if it were not for the transitional period Spain would have participated in the distributions of new quotas from 1986.

71. The Council, the Commission and the United Kingdom submit that the fishing opportunities which were the subject a distribution of quotas among the Member States after the accession of the Kingdom of Spain between1992 and 1998 are not new, within the meaning of either Article 20(2) of Regulation No 2371/2002 or Article 8(4)(iii) of Regulation No 3760/92, and that, consequently, the plea relied on by the Spanish Government is unfounded.

Findings of the Court

72. It must be observed, as the Council pointed out, that Regulation No 2341/2002 is not based on Regulation No 2371/2002, but on Regulation No 3760/92. Therefore, the claim that Article 20(2) of Regulation No 2371/2002 has been infringed is irrelevant.

73. It must be held, however, that the provisions of Article 20(2) of Regulation No 2371/2002 repeat in substance the provisions of Article 8(4)(iii) of Regulation No 3760/92.

74. It is appropriate, therefore, in this case to consider the plea raised by the Kingdom of Spain as relating to the latter provisions.

75. The Spanish Government mentions certain species which it claims were the subject of an allocation for the first time during the transitional period, but does not cite any specific regulation in support of its claims.

76. However, the Council and the United Kingdom mention, without being contradicted, two regulations which appear to them to be referred to by the Kingdom of Spain, namely Council Regulation (EC) No 783/98 of 7 April 1998 amending Regulation (EC) No 45/98 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1998 and certain conditions under which they may be fished (OJ 1998 L 113, p. 8) and Council Regulation (EC) No 1570/1999 of 12 July 1999 on the distribution of fishing possibilities for certain fish stocks and amending Regulation (EC) No 48/1999 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1999 and certain conditions under which they may be fished (OJ 1999 L 187, p. 5).

77. It must be observed that the fishing quotas allocated under Regulation No 2341/2002 for 2003, referring to the species covered by the two regulations mentioned in the preceding paragraph, do not constitute quotas established for the first time by the Council but quotas which were allocated during the transitional period.

78. Accordingly, those quotas do not constitute new fishing opportunities within the meaning of Article 8(4)(iii) of Regulation No 3760/92, but concern the existing fishing opportunities under Article 8(4)(ii) of that regulation, and are subject to the principle of relative stability.

79. Having regard to the foregoing considerations, the Kingdom of Spain’s plea alleging infringement of the provisions of Article 20(2) of Regulation No 2371/2002 must be dismissed.

80. Since none of the pleas put forward by the Kingdom of Spain has been upheld, these actions must be dismissed.

Costs

81. 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 Council has applied for costs and the Kingdom of Spain has been unsuccessful, the latter must be ordered to pay the costs. In accordance with the first subparagraph of Article 69(4) of those Rules, the United Kingdom and the Commission must bear their own costs.

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

1. Dismisses the actions;

2. Orders the Kingdom of Spain to pay the costs;

3. Orders the United Kingdom of Great Britain and Northern Ireland and the Commission of the European Communities to bear their own costs.