Case T‑260/11

Kingdom of Spain

v

European Commission

‛Fisheries — Conservation of fishery resources — Overfishing by Spain of mackerel in zones VIII c, IX and X and in European Union waters of CECAF 34.1.1 allocated for the year 2010 — Deductions from fishing quotas allocated for the years 2011 to 2015 — Rights of defence — Legal certainty — Legitimate expectations — Equal treatment’

Summary — Judgment of the General Court (Fourth Chamber), 18 June 2014

1. Fisheries — Conservation of the resources of the sea — System of fishing quotas — Deductions from quotas allocated for a given year on account of overfishing in previous years — Regulation No 1224/2009, Article 105 — Obligations and discretion of the Commission

   (Council Regulation No 1224/2009, Art. 105(1), (2) and (6); Council Regulation No 2371/2002, Art. 30)

2. EU law — Principles — Rights of defence — Observance thereof in the context of administrative proceedings — Scope

3. EU law — Principles — Protection of legitimate expectations — Conditions — Specific assurances given by the authorities

4. EU law — Principles — Protection of legitimate expectations — Limits — Common fisheries policy — Legislation adapted to changes in the economic situation — Not possible to claim protection of legitimate expectations — Protection refused to any person committing a manifest infringement of the rules in force

   (Council Regulation No 23/2010; Commission Regulation No 165/2011)

5. EU law — Principles — Equal treatment — Concept — Difference in treatment where there are factual and legal situations that are divergent, and thus not comparable — No infringement

1.  In Article 105(6) of Regulation No 1224/2009, establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, use of the word ‘may’ shows: (1) that the Commission has a discretion as to whether to refer to the Committee for Fisheries and Aquaculture established under Article 30 of Regulation No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy a proposal to adopt detailed rules for applying measures to deduct from future fishing quotas where a Member State has exceeded its quotas for a given year; and (2) that that discretion also covers the Commission’s power to choose, for that purpose, between the various subjects and instruments covered by that regulation. A Member State therefore departs from a false premiss in maintaining that the Commission is required to adopt detailed rules of application in order to be able to implement the instruments available to it under Article 105(1) and (2) of that regulation.

   However, Article 105(1) affirms a circumscribed power of the Commission in the sense that, when it has established that there has been overfishing by a Member State, it is required to operate deductions from the future quotas of that Member State. Similarly, Article 105(2) does not confer a discretion on the Commission regarding the action to be taken on such overfishing ‘in a given year’, but requires it operate ‘deductions in the following year or years from the ... quota ... of the Member State which has overfished’ by applying a prefix multiplying factor according to the level of overfishing found. It follows that the total volume of the deductions to be operated is the result of a precise calculation, the parameters of which — namely, the level of overfishing and the multiplying factor — are specifically laid down by that provision itself, so that the Commission has no discretion for determining their limit.

   It follows that the provisions of Article 105(1) and (2) of Regulation No 1224/2009, particularly those concerning the calculation of the total amount of the deductions to be made, are sufficiently clear, precise and unconditional and may therefore be applied directly by the Commission.

   (see paras 40, 41, 44, 45)

2.  The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely. Respect for that principle must therefore be ensured both where there is no specific legislation and also where legislation exists which does not itself take account of that principle. Where a Community institution has broad powers of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance.

   Consequently, the scope of the right to be heard, as a principle and fundamental right of the EU legal order, is afforded when the administration plans to adopt a measure adversely affecting a person, that is, a measure which may have a negative effect on the interests of the individual or Member State concerned, since its application does not depend on the existence of an express rule to that effect laid down by subordinate legislation.

   (see paras 62-64)

3.  See the text of the decision.

   (see para. 84)

4.  Where a well-informed and circumspect economic operator is able to predict the adoption of an EU measure likely to affect his interests, he cannot claim the benefit of the principle of the protection of legitimate expectations when that measure is adopted. Moreover, economic operators have no legitimate expectation that an existing situation which is capable of being altered by the Union institutions in the exercise of their discretionary power will be maintained. This is particularly true in an area such as the common fisheries policy, the objectives of which require constant adjustments in order to meet changes in economic circumstances. Finally, a breach of the protection of legitimate expectations may not be relied upon by a person who has committed a manifest infringement of the rules in force.

   (see paras 87, 88)

5.  See the text of the decision.

   (see para. 93)