61999O0301

Appeals Pleas in law Incorrect assessment of the facts Mere repetition of the pleas in law and arguments put forward before the Court of First Instance Failure to identify the error of law made by the Court of First Instance Inadmissible

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

$$It follows from Article 225 EC, the first paragraph of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts.

It also follows from those provisions that an appeal must indicate precisely the contested elements of the order which the appellant seeks to have set aside, and the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested order, simply repeats or reproduces verbatim the pleas in law and arguments already put forward before the Court of First Instance, including those which were based on facts expressly rejected by that Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake.

( see paras 32-33 )

In Case C-301/99 P,

Area Cova SA, established in Vigo (Spain),

Armadora José Pereira SA, established in Vigo,

Armadores Pesqueros de Aldán SA, established in Vigo,

Centropesca SA, established in Vigo,

Chymar SA, established in Vigo,

Eloymar SA, established in Estribela (Spain),

Exfaumar SA, established in Bueu (Spain),

Farpespan SL, established in Moaña (Spain),

Freiremar SA, established in Vigo,

Hermanos Gandón SA, established in Cangas (Spain),

Heroya SA, established in Vigo,

Hiopesca SA, established in Vigo,

José Pereira e Hijos SA, established in Vigo,

Juana Oya Pérez, resident in Vigo,

Manuel Nores González, resident in Marín (Spain),

Moradiña SA, established in Cangas,

Navales Cerdeiras SL, established in Camariñas (Spain),

Nugago Pesca SA, established in Bueu,

Pesquera Austral SA, established in Vigo,

Pescaberbés SA, established in Vigo,

Pesquerías Bígaro Narval SA, established in Vigo,

Pesquera Cíes SA, established in Vigo,

Pesca Herculina SA, established in Vigo,

Pesquera Inter SA, established in Cangas,

Pesquerías Marinenses SA, established in Marín,

Pesquerías Tara SA, established in Cangas,

Pesquera Vaqueiro SA, established in Vigo,

Sotelo Dios SA, established in Vigo,

represented by A. Creus Carreras, E. Contreras Ynzenga and A. Agustinoy Guilayn, abogados,

appellants,

APPEAL against the order of the Court of First Instance of the European Communities (Third Chamber) of 8 July 1999 in Case T-12/96 Area Cova and Others v Council and Commission [1999] ECR II-2301, seeking to have that order set aside,

the other parties to the proceedings being:

Council of the European Union, represented by J. Carbery and G. Ramos Ruano, acting as Agents, with an address for service in Luxembourg,

Commission of the European Communities, represented by T. van Rijn and J. Guerra Fernandez, acting as Agents, with an address for service in Luxembourg,

defendants at first instance,

Asociación Nacional de Armadores de Buques Congeladores de Pesca de Merluza (Anamer), established in Vigo,

Asociación Nacional de Armadores de Buques Congeladores de Pesquerías Varias (Anavar), established in Vigo,

and

Asociación de Sociedades Pesqueras Españolas (ASPE), established in Vigo,

applicants at first instance,

THE COURT (Fourth Chamber),

composed of: A. La Pergola, President of the Chamber, D.A.O. Edward and C.W.A. Timmermans (Rapporteur), Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

after hearing the Opinion of the Advocate General,

makes the following

Order

1 By application lodged at the Registry of the Court of Justice on 11 August 1999, Area Cova SA and 27 other boat-owners established in the Spanish provinces of Corunna and Pontevedra (Area Cova and others) brought an appeal pursuant to Article 225 EC and Article 49 of the EC Statute of the Court of Justice against the order of the Court of First Instance of 8 July 1999 in Case T-12/96 Area Cova and Others v Council and Commission [1999] ECR II-2301 (the order under appeal), in which the Court of First Instance dismissed as inadmissible their application for annulment of Commission Regulation (EC) No 2565/95 of 30 October 1995 concerning the stopping of fishing for Greenland halibut by vessels flying the flag of a Member State (OJ 1995 L 262, p. 27, the contested regulation).

Legal and factual background

2 The facts underlying the dispute, as they appear from the documents submitted to the Court of First Instance and are set out in paragraphs 1 to 11 of the order under appeal, may be summarised as follows.

3 In September 1994, the Fisheries Commission of the North-West Atlantic Fisheries Organisation (NAFO) established by the Convention on Future Multilateral Cooperation in the North-West Atlantic Fisheries (the NAFO Convention), which had been approved on behalf of the European Economic Community by Council Regulation (EEC) No 3179/78 of 28 December 1978 (OJ 1978 L 378, p. 1), imposed for the first time a limit on catches of Greenland halibut in the area regulated by the NAFO Convention (the NAFO area) by setting a total allowable catch (TAC) for that fish in NAFO sub-areas 2 and 3 of 27 000 tonnes for 1995.

4 On 20 December 1994, the Council adopted Regulation (EC) No 3366/94 laying down for 1995 certain conservation and management measures for fishery resources in the Regulatory Area as defined in the Convention on Future Multilateral Cooperation in the North West Atlantic Fisheries (OJ 1994 L 363, p. 60). In the seventh recital in the preamble to that regulation, the Council stated that the maximum catch level for Greenland halibut in NAFO sub-areas 2 and 3 in 1995 was as yet unallocated among NAFO Contracting Parties and that the NAFO Fisheries Commission was to convene a meeting to decide the allocation. Pending that allocation, catches of Greenland halibut would be authorised in 1995 and counted against the quotas decided for Member States.

5 The allocation referred to in the preceding paragraph was made at a special meeting held from 30 January to 1 February 1995, when the NAFO Fisheries Commission decided to make available to the European Community, from the TAC for Greenland halibut of 27 000 tonnes, a share amounting to 3 400 tonnes.

6 Considering that allocation to be insufficient, the Community raised an objection on 3 March 1995 pursuant to Article XII(1) of the NAFO Convention.

7 On the same day, apparently in reaction to that objection, Canada amended its legislation in order to be able to board vessels beyond its exclusive economic zone and on 9 March 1995 the Canadian authorities, on the basis of that freshly amended legislation, boarded the vessel Estai belonging to the appellant José Pereira e Hijos SA, which was fishing in the NAFO area.

8 By Regulation (EC) No 850/95 of 6 April 1995 amending Regulation No 3366/94 (OJ 1995 L 86, p. 1), the Council then established an autonomous Community quota limiting Community catches of Greenland halibut in NAFO sub-areas 2 and 3 for 1995 to 18 630 tonnes, while stating that ... [the] autonomous quota should respect the conservation measure established for this resource, namely, the TAC of 27 000 tonnes ... and that, to this end, it [was] necessary to provide for the possibility of stopping the fishery once the TAC [was] reached, even before the autonomous quota was exhausted.

9 In order to end the diplomatic dispute between the Community and the Canadian Government arising from the matters set out in paragraphs 6 and 7 of this order, on 20 April 1995 both parties signed an agreement, constituted in the form of an agreed minute, an exchange of letters, an exchange of notes and the annexes thereto, on fisheries in the context of the NAFO Convention, approved on behalf of the Community by Council Decision 95/586/EC of 22 December 1995 (OJ 1995 L 327, p. 35, the bilateral fisheries agreement).

10 In accordance with that agreement, the Council adopted Regulation (EC) No 1761/95 of 29 June 1995 amending, for the second time, Regulation No 3366/94 (OJ 1995 L 171, p. 1), which established for 1995, with effect from 16 April 1995, a Community quota of 5 013 tonnes for catches of Greenland halibut in NAFO sub-areas 2 and 3.

11 The exhaustion of that quota was declared on 30 October 1995 in the contested regulation.

Proceedings before the Court of First Instance

12 Since they considered that the halt to fishing for Greenland halibut in NAFO sub-areas 2 and 3 harmed their economic and financial interests and altered the legal position of all Spanish boat-owners devoting themselves to deep-sea fishing for Greenland halibut, Area Cova and others and three associations of boat-owners established in Vigo (Spain), the Asociación Nacional de Armadores de Buques Congeladores de Pesca de Merluza (Anamer), the Asociación Nacional de Armadores de Buques Congeladores de Pesquerías Varias (Anavar) and the Asociación de Sociedades Pesqueras Españolas (ASPE), brought an action on 25 January 1996 before the Court of First Instance for annulment of the contested regulation. In their action they pleaded that Regulation No 1761/95 and the bilateral fisheries agreement were unlawful.

13 By separate document, the Council and the Commission raised objections of inadmissibility in accordance with Article 114(1) of the Rules of Procedure of the Court of First Instance. The Council submitting that the action was brought against it in error since it was not the author of the contested regulation and the Commission that the regulation was a legislative measure of general application which, moreover, was not of direct and individual concern to the applicants, they both claimed that the action should be dismissed as inadmissible and the applicants ordered to pay the costs.

14 On 29 April 1996, the applicants lodged their observations on the objections of inadmissibility, the decision on which was reserved for final judgment by order of the Court of First Instance of 29 May 1997. First, the applicants argued that the contested regulation had been adopted by the Commission in implementation of Council Regulation No 1761/95, so that the Council was also responsible for the adoption of the contested regulation, even though it was not in fact its direct author. Secondly, the applicants pointed out the legal interest which they had in instituting proceedings since the contested regulation affected them not only by reason of certain attributes which were peculiar and unique to them, but also as a result of the circumstances which surrounded the adoption of the regulation and differentiated them from all other persons. Consequently, they requested that the Court of First Instance should grant them standing to bring an action challenging the contested regulation and order the Council and the Commission to pay the costs of the preliminary objection.

The order under appeal

15 In the order under appeal, the Court of First Instance dismissed the action as inadmissible.

16 First of all, the Court ruled in paragraphs 26 to 35 of the order under appeal that the contested regulation was a measure of general application. In particular, the Court noted in paragraph 27 that the regulation applies without distinction to every vessel flying the flag of a Member State or registered in a Member State which fishes, or might fish, for Greenland halibut in [NAFO sub-areas 2 and 3].

17 The Court stated, in paragraphs 36 to 70 of the order under appeal, that the contested regulation was not of individual concern to the 28 applicants who were boat-owners and, in paragraphs 71 to 74, that it was not of individual concern to the three applicant associations of boat-owners either. Analysing the contested regulation in the light of the relevant case-law of the Court of Justice, in particular Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501 and Case C-309/89 Codorniu v Council [1994] ECR I-1853, the Court found, in particular, that the regulation was not of concern to Area Cova and others by reason of certain attributes which were peculiar to them or by reason of circumstances which differentiated them, having regard to the regulation, from all other persons.

18 Secondly, as regards the plea that Regulation No 1761/95 and the bilateral fisheries agreement are unlawful, the Court noted, in paragraph 77 of the order under appeal, that such a plea, provided for in Article 184 of the EC Treaty (now Article 241 EC), may be raised only as an incidental plea and that Article 184 may not be invoked in the absence of an independent right of action. Since the Court had found that the action for annulment of the contested regulation was inadmissible, it also declared inadmissible the plea that Regulation No 1761/95 and the bilateral fisheries agreement were unlawful.

19 Finally, as regards the argument that refusal to grant the applicants standing to bring proceedings before the Court of First Instance would deny them a means of defending themselves against the contested regulation and thus undermine the fundamental right of access to justice, laid down in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Court pointed out, in paragraphs 80 to 84 of the order under appeal, that a temporary fishing permit had to be obtained before boats flying the Spanish flag could fish in the areas of the high sea not subject to the jurisdiction of the Kingdom of Spain, specifying both the area for fishing and the period during which it was authorised. Since such permits had lapsed from the entry into force of the contested regulation, it was open to the applicants to apply to the Spanish authorities for the issue of new permits authorising them to continue fishing for Greenland halibut in 1995 in the areas concerned notwithstanding the exhaustion of the Community quota, and then if appropriate to bring the matter before the national courts in order to challenge the validity of any decisions made refusing those applications and to obtain the suspension of their operation. The Court pointed out that, in the course of those national proceedings, there would have been nothing to prevent the applicants from putting in issue the validity of the Community legislation on the basis of which any decisions refusing applications would have been adopted and from thus requiring the national court to adjudicate on all the grounds of challenge formulated for that purpose, if necessary after a reference to the Court of Justice for a preliminary ruling as to the validity of the Community legislation.

The appeal

20 Area Cova and others put forward two pleas in support of their appeal seeking to have the order of the Court of First Instance set aside.

21 First, the Court of First Instance misapplied Article 173 of the EC Treaty (now, after amendment, Article 230 EC) in finding that the contested regulation was a measure of general application when, in their submission, the regulation's application is restricted, applying to a group of economic operators which is fully individually distinguished and fully identified.

22 Area Cova and others argue in particular that fishing for Greenland halibut is an activity entirely determined by strict conditions relating to programming, investment, preparation and the grant of administrative licences.

23 Secondly, the Court infringed Community law in declaring that the action brought by Area Cova and others was inadmissible, inasmuch as they were thus denied a means of effective judicial protection, contrary to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in conjunction with Article F(2) of the Treaty on European Union (now, after amendment, Article 6(2) EU).

24 Area Cova and others criticise the unsatisfactory nature of the legal remedy provided by Article 177 of the EC Treaty (now Article 234 EC). Besides the fact that references for preliminary rulings do not constitute a right of the applicant but a power of the national court, the remedy prolongs considerably the duration of proceedings. Article 173 of the Treaty is therefore the only appropriate legal remedy for challenging a Community regulation of direct and individual concern to a person.

25 In their responses, both the Council and the Commission claim that the appeal is inadmissible on the grounds that it is formulated in general terms and relates essentially to questions of fact already decided by the Court of First Instance.

26 As regards the first plea, relating to infringement of Article 173 of the Treaty, the Council and the Commission state that Area Cova and others are requesting the Court of Justice to reappraise the facts already relied on by them before the Court of First Instance in order to show that the contested regulation was of individual concern to them, an appraisal which, according to the Council and the Commission, falls outside the jurisdiction of the Court of Justice since appeals are limited to points of law.

27 As to the second plea, relating to a refusal of effective judicial protection, the Council and the Commission contend that in paragraphs 79 to 84 of the order under appeal the Court of First Instance clearly proved the existence of appropriate legal remedies for Area Cova and others. In the submission of the Council and the Commission, that analysis of the Spanish judicial and administrative system should be regarded as a finding of fact which on that basis is not open to appeal.

28 In the alternative, should the appeal be declared admissible, the Commission points out the effectiveness of the legal remedies available to Area Cova and others. The existence of domestic judicial remedies, combined with the system of references for preliminary rulings provided for in the EC Treaty, fully guarantees complete respect for the rights of individuals so that the appeal should be dismissed as clearly unfounded.

Findings of the Court

29 Under Article 119 of its Rules of Procedure, where an appeal is clearly inadmissible or clearly unfounded, the Court may, at any time, dismiss it by reasoned order without opening the oral procedure.

30 It should be noted at the outset that under Article 225 EC and the first paragraph of Article 51 of the EC Statute of the Court of Justice an appeal is limited to points of law and must be based on the grounds of lack of competence of the Court of First Instance, breach of procedure before it which adversely affects the interests of the appellant, or infringement of Community law by the Court of First Instance (see, inter alia, Case C-284/98 P Parliament v Bieber [2000] ECR I-1527, paragraph 30).

31 Article 112(1)(c) of the Rules of Procedure of the Court of Justice states that an appeal must specify the pleas in law and legal arguments relied on by the appellant.

32 It follows from the above provisions that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts (see, inter alia, Parliament v Bieber, paragraph 31).

33 It also follows from those provisions that an appeal must indicate precisely the contested elements of the order which the appellant seeks to have set aside, and the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested order, simply repeats or reproduces verbatim the pleas in law and arguments already put forward before the Court of First Instance, including those which were based on facts expressly rejected by that Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake (see, inter alia, the order in Case C-317/97 P Smanor and Others v Commission [1998] ECR I-4269, paragraphs 20 and 21, and the judgment in Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraphs 34 and 35).

The first plea

34 The first plea, relating to the appraisal by the Court of First Instance of the conditions governing the admissibility of the action for annulment of the contested regulation, does not satisfy any of the requirements set out in paragraphs 30 to 33 of this order.

35 Area Cova and others just largely reproduce the pleas and arguments which they put forward before the Court of First Instance, without identifying the error of law allegedly vitiating the order under appeal.

36 The plea amounts to a request that the Court of Justice re-examine the appraisal of the facts carried out by the Court of First Instance relating to whether the class of persons to whom the contested regulation was addressed was open or closed, when that appraisal is not open to appeal.

37 The first plea must therefore be declared clearly inadmissible.

The second plea

38 The second plea, relating to the lack of effective judicial protection, may be subdivided into three parts.

39 In the first part of the plea, Area Cova and others challenge the assertion of the Court of First Instance in paragraph 84 of the order under appeal that the system of judicial protection in Spain provided them with an effective opportunity to challenge the validity of the contested regulation.

40 In this regard, suffice it to state that Area Cova and others reproduce the arguments which they set out before the Court of First Instance without identifying the error of law allegedly made by it and that, since the finding made by the Court of First Instance is one of fact, it may not be challenged on appeal.

41 Since Area Cova and others, furthermore, have not proved by their reasoning or by the documents in the case that the Court of First Instance misinterpreted the evidence submitted for its appraisal, the first part of the second plea must be declared clearly inadmissible.

42 In the second part of the plea, Area Cova and others complain that the Court of First Instance presented references for preliminary rulings as an obligatory means of judicial protection of the interests of individuals, when that legal remedy falls within the scope of the appraisal of the national court and does not constitute in any circumstance a right of the applicant.

43 Suffice it to state that the Court of First Instance did not in any way refer to the preliminary reference procedure as an obligatory legal remedy, but on the contrary expressly noted, in paragraph 84 of the order under appeal, that if the applicants had brought proceedings before the national court, that court would have been called upon to rule on the validity of the Community legislation on the basis of which any decisions refusing to grant new fishing permits would have been adopted, if necessary after a reference to the Court of Justice for a preliminary ruling as to the validity of the Community legislation.

44 The use of those words clearly shows that such a reference is only a possibility, so that the second part of the second plea must be dismissed as clearly unfounded.

45 Finally, in the third part of the plea Area Cova and others dispute the effectiveness of a system of judicial protection requiring individuals first to choose a domestic remedy, coupled with the possibility of a reference for a preliminary ruling as to validity, in order to challenge the application of a Community regulation. Since such a reference is extremely hypothetical and the procedure provided for is very cumbersome, the remedy does not satisfy the requirements of effective judicial protection in accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in conjunction with Article F(2) of the Treaty on European Union. According to Area Cova and others, they could be guaranteed such protection only by a direct action brought under Article 173 of the EC Treaty.

46 In that regard, it must be stated that the possibility for individuals to have their rights protected by means of an action before the national courts, which have the power to grant interim relief and, where appropriate, to make a reference for a preliminary ruling, as explained in paragraph 84 of the order under appeal, constitutes the very essence of the Community system of judicial protection. Alongside the possibility, for those who comply with the conditions of admissibility laid down in the Treaty, of challenging a Community measure by bringing an action for annulment before the Community judicature, individuals have access to the legal remedies available in the Member States in order to assert their rights under Community law and the preliminary reference procedure enables effective cooperation to be established for that purpose between the national courts and the Court of Justice.

47 As to the argument that one of those remedies would not be effective in the present situation, that circumstance, even assuming it to be established, cannot constitute authority for changing, by judicial action, the system of remedies and procedures established by Articles 173 and 177 of the Treaty and 178 of the EC Treaty (now Article 235 EC) which is designed to give the Community judicature the power to review the legality of acts of the institutions. It cannot in any event allow an action for annulment brought by a natural or legal person who does not satisfy the conditions laid down by the fourth paragraph of Article 173 of the Treaty to be declared admissible (see the orders in Case C-10/95 P Asocarne v Council [1995] ECR I-4149, paragraph 26, in Case C-87/95 P CNPAAP v Council [1996] ECR I-2003, paragraph 38, and in Case C-300/00 P(R) Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2000] ECR I-8797, paragraph 37). In this regard, the order under appeal is therefore not vitiated by any error of law.

48 It follows from those considerations that the second plea must be declared clearly inadmissible as to its first part and clearly unfounded as to the remainder.

49 On those grounds, the appeal must be dismissed as being in part clearly inadmissible and in part clearly unfounded.

Costs

50 Under Article 69(2) of the Rules of Procedure, which applies to the appeal procedure by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Council and the Commission have applied for costs and Area Cova and others have been unsuccessful, Area Cova and others must be ordered to pay the costs.

On those grounds,

THE COURT (Fourth Chamber)

hereby orders:

1. The appeal is dismissed.

2. Area Cova and others shall pay the costs.