Republic of Latvia

v

European Commission

Order of the General Court (Fourth Chamber), 30 January 2020

(Action for annulment — Common fisheries policy — Treaty of Paris on the archipelago of Spitsbergen (Norway) — Fishing opportunities for snow crab around the area of Svalbard (Norway) — Regulation (EU) 2017/127 — Vessels registered in the European Union authorised to fish — Arrest of a Latvian vessel — Article 265 TFEU — Invitation to act — Adoption of a position by the Commission — Measure not producing binding legal effects — Inadmissibility)

  1. Action for annulment — Actionable measures — Meaning — Measures producing binding legal effects — Adoption of a position by the Commission on the request of a Member State to organise negotiations for the protection of the fishing rights and interests of the European Union in the Svalbard fishing area — Precluded

    (Arts 4, 13(2) and 17(1) TEU; Arts 3(1)(d), 4(2)(d), 38(1), 218 and 263 TFEU)

    (see paragraphs 22, 33, 37-40, 42)

  2. Action for annulment — Actionable measures — Meaning — Measures producing binding legal effects — Assessment by reference to objective criteria — An act of an institution which amounts to a rejection — Appraisal in the light of the nature of the request giving rise to the act

    (Art. 263 TFEU)

    (see paragraphs 24, 25, 35, 47)

  3. Action for annulment — Actionable measures — Meaning — Measures producing binding legal effects — Decision of the Commission to bring legal proceedings — Precluded

    (Art. 263 TFEU)

    (see paragraph 49)

Résumé

By its order of 30 January 2020 in Case T‑293/18, Latvia v Commission, the General Court dismissed as inadmissible the action brought by the Republic of Latvia seeking, inter alia, the annulment of the position adopted by the European Commission on a request to act within the framework of its powers in the area of the common fisheries policy.

Under Article 265 TFEU, the Republic of Latvia had requested the Commission to act by taking measures regarding the defence of the EU fishing rights and interests in the fishing area of Svalbard, in Norway. That archipelago is the subject of a dispute between the European Union and the Kingdom of Norway concerning the rights of access to fishery resources, in particular as regards fishing for snow crab on the continental shelf. As a result of differing interpretations of the 1920 Treaty of Paris, ( 1 ) which governs fishing rights in that area, the negotiations between the European Union and the Kingdom of Norway did not lead to an arrangement guaranteeing EU vessels unhindered access rights. Accordingly, a Latvian vessel had been arrested for fishing without the authorisation of the Kingdom of Norway.

More specifically, the Republic of Latvia requested the Commission, first, to organise and participate in official negotiations with the Kingdom of Norway until the deadline of 31 March 2018, with a view to ensuring that the European Union’s fishing rights in that fishing area are upheld, and, second, to undertake to bring international legal proceedings against the Kingdom of Norway if it were impossible to safeguard those fishing rights.

As regards the first measure requested, the Commission impliedly rejected it, stating, in essence, that it would continue to participate in the negotiations without setting a final date for their end. As regards the second measure, the Commission stated, in essence, that it could not act upon it because there were procedural obstacles thereto.

Faced with that refusal to act, the Republic of Latvia brought an action before the Court under Article 263 TFEU seeking, inter alia, the annulment of the Commission’s letter setting out its position on the request to act. According to the Commission, the action had to be declared inadmissible on the ground that that letter was not a challengeable act for the purposes of Article 263 TFEU, in that it did not produce any legal effects altering the legal situation of the Republic of Latvia.

In those circumstances, the Court was called upon to examine whether the letter in question constituted a challengeable act. In that regard, it recalled, first of all, that a refusal by an institution to act in accordance with a request to act may constitute a challengeable act and be the subject of an action for the purposes of Article 263 TFEU, provided that the conditions for bringing such an action are satisfied. Any measures adopted by the EU institutions, whatever their form, which are intended to have binding legal effects, are regarded as challengeable measures, within the meaning of Article 263 TFEU. Having regard to the nature of the letter in question, the Court then pointed out that, where an act of the Commission amounts to a rejection, it must be appraised in the light of the nature of the request to which it constituted a reply.

With regard to the first request, relating to the negotiations with the Kingdom of Norway, the Court found that the act the adoption of which was refused was, in essence, an act the effect of which would have been to impose a deadline for those negotiations. According to the Republic of Latvia, the Commission ought to have drafted an informal document imposing a deadline and asked the Council of the European Union for a mandate allowing the Commission to open formal negotiations under Article 218 TFEU. Having regard to the institutional context of the common fisheries policy, such an informal document or the submission of a request for a mandate to the Council are not acts capable of having binding legal effects. Indeed, the adoption of such acts is not an automatic procedure. The principle of cooperation in good faith ( 2 ) does not in any way oblige the Commission to act on a proposal from a Member State, in particular without a wider consensus within the Council.

As regards the second request, namely to bring international legal proceedings against the Kingdom of Norway, the Court pointed out that the decision to bring legal proceedings, even if it constituted a measure essential to the adoption of a judicial decision capable of changing the legal position, does not, in itself, alter that legal situation. In the view of the Court, that conclusion also applies to the bringing of an action before an international court.

It follows that, even were the Commission to agree to the Republic of Latvia’s requests, its decision would not produce binding legal effects and could not therefore be challenged. Nor, therefore, does the letter of refusal at issue constitute a challengeable act for the purposes of Article 263 TFEU. The Court therefore dismissed the action as inadmissible.

( 1 ) Spitsbergen Treaty, concluded in Paris on 9 February 1920.

( 2 ) Article 4 TEU.