Keywords
Summary

Keywords

1. Plea of illegality – Incidental nature

(Arts 230, fifth para., EC and 241 EC)

2. Procedure – Res judicata

3. Fisheries – Conservation of the resources of the sea – System for the management of fishing effort relating to certain Community fishing areas and resources

(Art. 34(2) EC; Council Regulation No 1954/2003, Arts 3, 4 and 6)

4. Fisheries – Conservation of the resources of the sea – System for the management of fishing effort relating to certain Community fishing areas and resources

(Art. 241 EC; Council Regulation No 1954/2003, Art. 6)

Summary

1. A Member State may, in the course of legal proceedings, challenge the legality of a regulation against which it has not brought an action for annulment before the expiry of the time-limits laid down in the fifth paragraph of Article 230 EC. Whereas, to be admissible, such a plea of illegality should, in principle, have been raised in the application, it will also be admissible if it is raised expressly only in the reply, without any pleas in law not already put forward in the application being introduced in support thereof, if it was already implicitly but clearly contained in the application.

(see paras 22-24)

2. A plea of illegality raised by a Member State in regard to a regulation does not infringe the principle of res judicata in respect of an earlier judgment if the Court did not rule in that judgment on the legality of provisions of the regulation covered by the plea of illegality but rejected the pleas on the basis of which annulment of those articles was sought on the ground that they were inadmissible. The principle of res judicata extends only to matters of fact and law actually or necessarily settled by the judicial decision in question.

(see para. 25)

3. The principle of non-discrimination, as laid down in Article 34(2) EC, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.

The provisions of Articles 3, 4 and 6 of Regulation No 1954/2003 on the management of the fishing effort relating to certain Community fishing areas and resources are applicable in an identical manner to all Member States. In particular, the reference period from 1998 to 2002, which serves, pursuant to those provisions, for the assessment and then for the allocation of levels of fishing effort for the fisheries and areas covered by them is the same for the whole of the European Community. The limitation of the fishing effort, fixed on the basis of the effort actually exerted during that period by each national fleet in those areas and fisheries, thus applies to all Community fishing vessels regardless of nationality. Therefore, the measures contained in those provisions cannot be regarded as discriminating against a Member State unless, on the one hand, that Member State was in a different position from the other Member States when those provisions were adopted and, on the other, it is not objectively justified that the Member State should be subject, in some circumstances, to the same fishing effort management regime as the other Member States.

Making a Member State which found itself in a different situation from the other Member States at the time that Regulation No 1954/2003 was adopted subject to the same arrangements for management of the fishing effort as the other Member States, laid down in the said regulation appears to be objectively justified inasmuch as, on the one hand, those arrangements lay down a method for assessing fishing effort which is based on an objective criterion, namely the fishing effort actually exerted by each Member State in the areas and fisheries concerned during a recent period of five years, and, on the other hand, the purpose of the arrangements is to conserve fisheries resources in order to ensure, according to the fourth recital in the preamble to the regulation, that there is no increase in the overall levels of existing fishing effort.

(see paras 35-36, 40-41)

4. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case.

Neither the fact that technical measures for the protection of juveniles of marine organisms may also fall within another regulation nor the fact that there may be other biologically sensitive areas shows that there has been a misuse of powers on the part of the Council in the adoption of specific fishing effort management arrangements for a biologically sensitive area in Article 6 of Regulation No 1954/2003 on the management of the fishing effort relating to certain Community fishing areas and resources.

(see paras 49-50)