61987J0290

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1.Action for a declaration that a Member State has failed to fulfil its obligations - Reasoned opinion - Originating application - Same grounds and submissions

( EEC Treaty, Art . 169 )

2.Action for a declaration that a Member State has failed to fulfil its obligations - Proof of failure to fulfil the obligation - Onus on the Commission - Presumptions - Inadmissibility

( EEC Treaty, Art . 169 )

3.Fisheries - Conservation of resources of the sea - Quota system - Duty to manage on the part of the Member States - Prohibition of fishing after exhaustion of quotas - Failure to fulfil obligation

( Council Regulation No 2057/82, Art . 10(2 ) )

In Case 290/87

Commission of the European Communities, represented by its Legal Adviser, R . C . Fischer, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of the Commission' s Legal Department, Wagner Centre, Luxembourg,

applicant,

v

Kingdom of the Netherlands, represented by its Agents, G . M . Borchardt and M . A . Fierstra, Assistant Legal Advisers at the Ministry of Foreign Affairs, with an address for service in Luxembourg at the Embassy of the Netherlands,

defendant,

APPLICATION for a declaration that by exceeding the fishing quotas allocated to it for 1983, 1984 and 1985 the Kingdom of the Netherlands has failed to fulfil 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 ( Official Journal 1983, L 24, p . 1 ) and Articles 1 and 6 to 10 of Council Regulation ( EEC ) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States ( Official Journal 1982, L 220, p . 1 ) in conjunction with the regulations fixing quotas for the years in question,

THE COURT

composed of : T . Koopmans, President of Chamber, acting for the President, R . Joliet and F . Grévisse, Presidents of Chambers, C . N . Kakouris, G . C . Rodríguez Iglesias, M . Díez de Velasco and M . Zuleeg, Judges,

Advocate General : C . O . Lenz

Registrar : B . Pastor, Administrator, for the Registrar

having regard to the Report for the Hearing and further to the hearing on 7 June 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 11 July 1989,

gives the following

Judgment

1 By application lodged at the Court Registry on 28 September 1987, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by exceeding the fishing quotas allocated to it for 1983, 1984 and 1985, the Kingdom of the Netherlands had failed to fulfil 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 ( Official Journal 1983, L 24, p . 1 ) and Articles 1 and 6 to 10 of Council Regulation ( EEC ) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States ( Official Journal 1982, L 220, p . 1 ) in conjunction with the regulations fixing quotas for the years in question .

2 The Kingdom of the Netherlands acknowledges that some of the fishing quotas allocated to it for 1983, 1984 and 1985 were exceeded .

3The Commission' s principal submission is that the exceeding of the quotas was the consequence of the Kingdom of the Netherlands' failure to fulfil its obligation to prohibit fishing in good time pursuant to Article 10(2 ) of Regulation No 2057/82 . In the alternative, the Commission contends that the exceeding of the quotas was also the result of the Kingdom of the Netherlands' incorrect fulfilment of the obligations concerning the management of quotas incumbent upon it under Article 5(2 ) of Regulation No 170/83 establishing the conservation system, and of a failure to fulfil the obligations to inspect vessels, to take action with regard to infringements and to control catches, laid down in Regulation No 2057/82 .

4 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned hereinafter only in so far as is necessary for the reasoning of the Court .

Admissibility

5 The Kingdom of the Netherlands claims that the application is inadmissible because the Commission has not made specific objections to the Netherlands regulations designed to implement Regulations Nos 170/83 and 2057/82 .

6 That objection of inadmissibility must be rejected . The Commission has clearly defined the subject-matter of the dispute by listing in its application the obligations arising under the Community regulations on fishing which it alleges the Kingdom of the Netherlands has not fulfilled or has fulfilled inadequately . Whether the Commission has adduced specific and sufficient facts for justifying the finding that the alleged breach has occurred is a question going to the substance of the case .

7 However, the Commission' s claim for a finding of a breach of the obligation to record catches laid down in Article 9 of Regulation No 2057/82 must be rejected as inadmissible .

8 The Court has consistently held that an application must be founded on the same grounds and submissions as the reasoned opinion ( see the judgment of 15 December 1982 in Case 211/81 Commission v Denmark (( 1982 )) ECR 4547, in particular paragraph 14 ).

9 In the present case, however, the reasoned opinion of 16 December 1986 expressly excluded from the subject-matter of the dispute the obligations to record the catches for 1983 and 1984 . Moreover, with regard to 1985, the Commission temporarily reserved that question in point 3.1 of that reasoned opinion but made no further reference to it .

Substance

The principal submission that fishing was prohibited too late

10 With this submission the Commission charges the Kingdom of the Netherlands with having failed to fulfil its obligations under Article 10(2 ) of Regulation No 2057/82 . That provision requires the Member States to determine the date from which a quota is deemed to have been exhausted and, as from that date, to prohibit provisionally the fishing, retention on board, transhipment and landing of fish belonging to the stock in question . According to the Commission, Article 10(2 ) imposes an obligation regarding the result to be achieved, so that the mere fact that quotas are found to have been exceeded can give rise to the presumption that the Kingdom of the Netherlands did not fulfil in good time its obligation to prohibit fishing .

11 That argument cannot by itself provide grounds for a declaration that a Member State has failed to fulfil its obligations; in proceedings brought under Article 169 of the Treaty the Commission is required to prove the allegation that the obligation has not been fulfilled and may not rely on any presumption ( see the judgment of the Court of 25 May 1982 in Case 96/81 Commission v Kingdom of the Netherlands (( 1982 )) ECR 1791, in particular paragraph 6 ).

12 Since the Commission may not rely solely on presumptions to support its submission, consideration must be given to the question whether, in support of its application, it has adduced facts proving that the Kingdom of the Netherlands did not decide in good time to prohibit fishing for certain stocks of fish during the period in question .

13 As far as the years 1983 and 1984 are concerned, the Commission' s evidence is limited to giving the total quantities caught by stock . It is common ground that those figures include both catches made before the adoption of the decisions to prohibit fishing and illegal catches made after the adoption of those decisions . Since the Commission has not specified the total volume of catches taken by the time of the adoption of the decisions or of those taken by the time of the entry into force of those decisions upon their publication in the Staatscourant, it is impossible for the Court to determine whether the established breaches of quotas were due to the late prohibition of fishing or to illegal catches . Consequently, it must be concluded that the Commission has not proved that the Netherlands decided too late to prohibit fishing in 1983 and 1984 .

14 For 1985, however, the Commission has produced figures for the catches taken at the time when it was decided to prohibit fishing . As the representative of the Netherlands Government admitted at the hearing, those figures show that in some cases the Netherlands Government decided to prohibit fishing only when the quota for the stock in question had already been exhausted . This was the case for example with whiting in Zone VII a and plaice in Zones II a and IV .

15 It is evident from those findings that, by not deciding in good time to prohibit fishing for certain stocks in 1985, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 10(2 ) of Regulation No 2057/82 .

The alternative submissions

16 First, the Commission charges the Kingdom of the Netherlands with not having correctly fulfilled its obligations under Article 5(2 ) of Regulation No 170/83 relating to the utilization of the quotas .

17 That submission must be rejected since the Commission has not indicated precisely how the regulations adopted by the Kingdom of the Netherlands in order to fulfil its obligations were deficient nor what regulations ought to have been adopted by that State in order to meet the requirements of the provision in question .

18 Secondly, the Commission maintains that the Kingdom of the Netherlands has failed to fulfil its obligations under Article 1(2 ) and Article 6 of Regulation No 2057/82 . The first of those provisions requires the Member States to inspect fishing vessels and to take penal or administrative action against skippers who do not observe the regulations in force concerning conservation and control measures . The second requires them to verify the accuracy of the declarations made by the skippers as to the quantities of fish landed .

19 As regards the obligations to carry out inspections, the Commission states that the efforts made by the Netherlands authorities were inadequate and, as regards the prosecution of infringements, that the action taken against illegal fishing could have been more effective . Finally, as regards the verification of the declarations of catches, the Commission has confined itself to pointing out that the Netherlands authorities are under an obligation to rectify those declarations if they contain inaccuracies .

20 Those last submissions must also be rejected : at no stage of the proceedings has the Commission adduced any specific and concrete evidence which would prove that the Kingdom of the Netherlands had failed to fulfil its obligations under Article 1(2 ) and Article 6 of Regulation No 2057/82 .

Costs

21 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . However, the first subparagraph of Article 69(3 ) provides that the Court may order the parties to bear their own costs in whole or in part if each party succeeds on some and fails on other heads . Since the Commission has succeeded on some heads of its application, the parties must be ordered to bear their own costs .

On those grounds,

THE COURT

hereby :

( 1)Declares that, by not deciding in good time to prohibit fishing for certain stocks in 1985, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 10(2 ) of Council Regulation ( EEC ) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States;

( 2)Dismisses the remainder of the application;

( 3)Orders the parties to bear their own costs .