Case C‑611/12 P

Jean-François Giordano

v

European Commission

‛Appeals — Common fisheries policy — Fishing quotas — Emergency measures adopted by the Commission — Non-contractual liability of the European Union — Second paragraph of Article 340 TFEU — Conditions — Actual and certain harm — Individual fishing rights’

Summary — Judgment of the Court (Grand Chamber), 14 October 2014

1. Appeal — Grounds — Review by the Court of the legal classification of the facts — Lawfulness — Review of the actual and certain harm alleged — Included

   (Arts 256 TFEU and 340, second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)

2. Appeal — Grounds — Mere repetition of the pleas and arguments put forward before the General Court — Inadmissibility

   (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.)

3. Non-contractual liability — Conditions — Actual and certain harm — Burden of proof — Harm caused by the loss of part of a fishing quota due to the adoption of a prohibition measure — Uncertainty as to the extent of the harm — No effect on the certain nature of the harm

   (Art. 340, second para., TFEU; Commission Regulation No 530/2008)

4. Fisheries — Conservation of the resources of the sea — System of fishing quotas — Adoption by the Commission of emergency measures restricting fishing in the event of a serious threat to the conservation of resources or to the marine eco-system — No obligation to wait for a quota being exceeded before adopting measures

   (Council Regulation No 2371/2002, Art. 7(1))

5. Fisheries — Conservation of the resources of the sea — Measures seeking to address the threat of bluefin tuna stock in the Eastern Atlantic collapsing — Regulation No 530/2008 — Disproportionate restriction on the right to property and right to freely pursue a trade or profession — No such restriction — No infringement of the principles of legal certainty and the protection of legitimate expectations

   (Charter of Fundamental Rights of the European Union, Arts 15, 17, first para., and 52(1); Council Regulation No 2371/2002, Arts 7(1) and 26(4)) Commission Regulation No 530/2008)

1.  A ground of appeal is admissible in the context of an appeal requesting the Court to rule on the existence of an error of law committed by the General Court in the characterisation of harm alleged as actual and certain in the context of the European Union’s non-contractual liability.

   (see para. 31)

2.  See the text of the decision.

   (see para. 33)

3.  In the context of the European Union’s non-contractual liability under the second paragraph of Article 340 TFEU, the condition relating to damage requires that the damage for which compensation is sought be actual and certain, which it is for the appellant to prove.

   As regards alleged harm, consisting of the unfished and unsold part of an individual fishing quota because of the prohibition on bluefin tuna fishing from a particular date by Regulation No 530/2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45°W, and in the Mediterranean Sea, that harm could not be regarded as actual and certain, in so far as it could not be excluded that even if the appellant had been able to fish beyond the date of the actual prohibition, he would not have reached his quota for reasons beyond his control.

   The existence of a right conferred on individuals by a rule of law does not relate to the actual nature of the harm alleged but constitutes a condition for a finding of a sufficiently serious breach of such a rule by an EU institution, in order that the non-contractual liability of the European Union be incurred. Moreover, the rejection of the argument that the appellant would have exhausted his quota is solely relevant for assessing the extent of the harm alleged, but not the very existence of such harm, the certainty of which is not called into question by uncertainty as to its precise extent.

   (see paras 36-38, 40)

4.  According to the very wording of Article 7(1) of Regulation No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, the Commission may adopt emergency measures as soon as there is evidence of a serious threat to the conservation of living aquatic resources or to the marine ecosystem resulting from fishing activities and requiring immediate intervention without having to wait for an allocated quota to be exceeded. In that regard, being a holder of a right to fish and of a quota allocated by the competent Member State for a fishing season cannot give the holder of the quota the right to be able, in all circumstances, to exhaust that quota.

   (see paras 46, 48)

5.  Regulation No 530/2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and in the Mediterranean Sea does not constitute a disproportionate restriction of the right to pursue and carry out an occupation, as guaranteed by Article 15 of the Charter of Fundamental Rights of the European Union, and of the right to property, as guaranteed by the first paragraph of Article 17 of the Charter.

   Regulation No 530/2008 undeniably meets an objective of general interest pursued by the European Union, namely to avoid, pursuant to Article 7(1) of Regulation No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, a serious threat to the conservation and recovery of bluefin tuna stock in the Eastern Atlantic and the Mediterranean Sea. Moreover, the measures prohibiting fishing contained in Regulation No 530/2008 are not manifestly inappropriate in relation to what is necessary to attain that objective of general interest, and thus comply with the principle of proportionality. The freedom to pursue a trade or profession does not constitute an absolute prerogative, but must be viewed in relation to its function in society. Accordingly, limitations may be imposed on the exercise of that freedom in accordance with Article 52(1) of the Charter of Fundamental Rights of the European Union.

   Furthermore, since the possibility that measures may be taken that result in fishing seasons being ended before the normal date is provided for inter alia in Article 7(1) and Article 26(4) of Regulation No 2371/2002, Community operators whose activity consists in fishing bluefin tuna cannot, therefore, rely on the principle of legal certainty or the protection of legitimate expectations since they are in a position to foresee that such measures may be taken.

   (see paras 49, 50, 52)

Case C‑611/12 P

Jean-François Giordano

v

European Commission

‛Appeals — Common fisheries policy — Fishing quotas — Emergency measures adopted by the Commission — Non-contractual liability of the European Union — Second paragraph of Article 340 TFEU — Conditions — Actual and certain harm — Individual fishing rights’

Summary — Judgment of the Court (Grand Chamber), 14 October 2014

1. Appeal — Grounds — Review by the Court of the legal classification of the facts — Lawfulness — Review of the actual and certain harm alleged — Included

   (Arts 256 TFEU and 340, second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)

2. Appeal — Grounds — Mere repetition of the pleas and arguments put forward before the General Court — Inadmissibility

   (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.)

3. Non-contractual liability — Conditions — Actual and certain harm — Burden of proof — Harm caused by the loss of part of a fishing quota due to the adoption of a prohibition measure — Uncertainty as to the extent of the harm — No effect on the certain nature of the harm

   (Art. 340, second para., TFEU; Commission Regulation No 530/2008)

4. Fisheries — Conservation of the resources of the sea — System of fishing quotas — Adoption by the Commission of emergency measures restricting fishing in the event of a serious threat to the conservation of resources or to the marine eco-system — No obligation to wait for a quota being exceeded before adopting measures

   (Council Regulation No 2371/2002, Art. 7(1))

5. Fisheries — Conservation of the resources of the sea — Measures seeking to address the threat of bluefin tuna stock in the Eastern Atlantic collapsing — Regulation No 530/2008 — Disproportionate restriction on the right to property and right to freely pursue a trade or profession — No such restriction — No infringement of the principles of legal certainty and the protection of legitimate expectations

   (Charter of Fundamental Rights of the European Union, Arts 15, 17, first para., and 52(1); Council Regulation No 2371/2002, Arts 7(1) and 26(4)) Commission Regulation No 530/2008)

1.  A ground of appeal is admissible in the context of an appeal requesting the Court to rule on the existence of an error of law committed by the General Court in the characterisation of harm alleged as actual and certain in the context of the European Union’s non-contractual liability.

   (see para. 31)

2.  See the text of the decision.

   (see para. 33)

3.  In the context of the European Union’s non-contractual liability under the second paragraph of Article 340 TFEU, the condition relating to damage requires that the damage for which compensation is sought be actual and certain, which it is for the appellant to prove.

   As regards alleged harm, consisting of the unfished and unsold part of an individual fishing quota because of the prohibition on bluefin tuna fishing from a particular date by Regulation No 530/2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45°W, and in the Mediterranean Sea, that harm could not be regarded as actual and certain, in so far as it could not be excluded that even if the appellant had been able to fish beyond the date of the actual prohibition, he would not have reached his quota for reasons beyond his control.

   The existence of a right conferred on individuals by a rule of law does not relate to the actual nature of the harm alleged but constitutes a condition for a finding of a sufficiently serious breach of such a rule by an EU institution, in order that the non-contractual liability of the European Union be incurred. Moreover, the rejection of the argument that the appellant would have exhausted his quota is solely relevant for assessing the extent of the harm alleged, but not the very existence of such harm, the certainty of which is not called into question by uncertainty as to its precise extent.

   (see paras 36-38, 40)

4.  According to the very wording of Article 7(1) of Regulation No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, the Commission may adopt emergency measures as soon as there is evidence of a serious threat to the conservation of living aquatic resources or to the marine ecosystem resulting from fishing activities and requiring immediate intervention without having to wait for an allocated quota to be exceeded. In that regard, being a holder of a right to fish and of a quota allocated by the competent Member State for a fishing season cannot give the holder of the quota the right to be able, in all circumstances, to exhaust that quota.

   (see paras 46, 48)

5.  Regulation No 530/2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and in the Mediterranean Sea does not constitute a disproportionate restriction of the right to pursue and carry out an occupation, as guaranteed by Article 15 of the Charter of Fundamental Rights of the European Union, and of the right to property, as guaranteed by the first paragraph of Article 17 of the Charter.

   Regulation No 530/2008 undeniably meets an objective of general interest pursued by the European Union, namely to avoid, pursuant to Article 7(1) of Regulation No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, a serious threat to the conservation and recovery of bluefin tuna stock in the Eastern Atlantic and the Mediterranean Sea. Moreover, the measures prohibiting fishing contained in Regulation No 530/2008 are not manifestly inappropriate in relation to what is necessary to attain that objective of general interest, and thus comply with the principle of proportionality. The freedom to pursue a trade or profession does not constitute an absolute prerogative, but must be viewed in relation to its function in society. Accordingly, limitations may be imposed on the exercise of that freedom in accordance with Article 52(1) of the Charter of Fundamental Rights of the European Union.

   Furthermore, since the possibility that measures may be taken that result in fishing seasons being ended before the normal date is provided for inter alia in Article 7(1) and Article 26(4) of Regulation No 2371/2002, Community operators whose activity consists in fishing bluefin tuna cannot, therefore, rely on the principle of legal certainty or the protection of legitimate expectations since they are in a position to foresee that such measures may be taken.

   (see paras 49, 50, 52)