61989J0062

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Fisheries - Conservation of marine resources - Fishing quotas - Catches in Faeroese waters - Division between the Member States of the available catch - Control measures for compliance with quotas - Applicability - Imminent exhaustion of the quota allocated to a Member State - Obligation of the Member State concerned to prohibit fishing provisionally - Possibility of increasing the quota by exchanges with other Member States - No effect

( Council Regulation No 2057/82, Art . 10(2 ), and Council Regulation No 6/85 )

Once the agreement on fisheries with the Government of Denmark and the Home Government of the Faeroe Islands concerning access to and conservation of fishery resources has laid down a limit for catches by Community fishermen in Faeroese waters and quotas have consequently been fixed for the Member States, the relevant rules concerning compliance with those quotas, such as Article 10 of Regulation No 2057/82 establishing certain control measures, must be applied, even if there is no express reference to them in the regulation dividing the catch quotas between the Member States, if compliance with the agreement, and in particular compliance with the catch ceilings available to the Community, is not to be jeopardized .

A Member State cannot rely on the mere possibility of obtaining an increase in its quota by means of an exchange of quotas negotiated with another Member State in order to free itself from its obligation under Article 10(2 ) of Regulation No 2057/82 to provisionally prohibit fishing by vessels flying its flag or registered in that Member State from the date from which catches subject to quota taken by those vessels are deemed to have exhausted the State' s quota . Any delay in the provisional closure of fishing is likely to cause the quota to be exceeded if such negotiations, the result of which is uncertain, fail or if the quantities obtained are insufficient to cover the catches made in the meantime . It follows that any agreement for the exchange of quotas concluded with another Member State for the purpose of increasing a quota must take place either before the exhaustion of the initial quota or after the provisional prohibition of fishing .

In Case C-62/89

Commission of the European Communities, represented by Patrick Hetsch, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

applicant,

v

French Republic, represented by Edwige Belliard, Deputy Director of the Legal Affairs Directorate at the Ministry of Foreign Affairs, acting as Agent, and Marc Giacomini, Foreign Affairs Secretary in the same Ministry, acting as Deputy Agent, with an address for service in Luxembourg at its embassy, 9 boulevard du Prince-Henri,

defendant,

APPLICATION for a declaration that by failing to ensure observance of the quotas allocated to it for 1985 for catches of redfish and flatfish in Faeroese waters the French Republic has failed to fulfil its obligations under Article 5(2 ) of Council Regulation ( EEC ) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources ( Official Journal 1983, L 24, p . 1 ) and Articles 1(1 ) and ( 2 ), 6 to 9 and 10(1 ) and ( 2 ) of Council Regulation ( EEC ) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States ( Official Journal 1982, L 220, p . 1 ), read in conjunction with Article 1 of Council Regulation ( EEC ) No 6/85 of 19 December 1984 allocating catch quotas between Member States for vessels fishing in Faeroese waters ( Official Journal 1985, L 1, p . 62 ),

THE COURT

composed of : O . Due, President, F . A . Schockweiler and M . Zuleeg ( Presidents of Chambers ), G . F . Mancini, T . F . O' Higgins, J . C . Moitinho de Almeida and M . Diez de Velasco, Judges,

Advocate General : F . G . Jacobs

Registrar : J . A . Pompe, Deputy Registrar

having regard to the Report for the Hearing and further to the hearing on 1 February 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 20 February 1990,

gives the following

Judgment

1 By an application lodged at the Court Registry on 3 March 1989, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by failing to ensure observance of the quotas allocated to it for 1985 for catches of redfish and flatfish in Faeroese waters the French Republic has failed to fulfil its obligations under Article 5(2 ) of Council Regulation ( EEC ) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources ( Official Journal 1983, L 24, p . 1 ) and Articles 1(1 ) and ( 2 ), 6 to 9 and 10(1 ) and ( 2 ) of Council Regulation ( EEC ) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States ( Official Journal 1982, L 220, p . 1 ), read in conjunction with Article 1 of Council Regulation ( EEC ) No 6/85 of 19 December 1984 allocating catch quotas between Member States for vessels fishing in Faeroese waters ( Official Journal 1985, L 1, p . 62 ).

2 Fishing in Faeroese waters is governed by the agreement on fisheries between the European Economic Community and the Government of Denmark and the Home Government of the Faeroe Islands, annexed to Council Regulation No 2211/80 of 27 June 1980 ( Official Journal 1980, L 226, p . 11 ). In accordance with the arrangements made between the Community and the Faeroe Islands in the context of that agreement, Regulation No 6/85, the validity of which was extended to 31 December 1985 by Council Regulation ( EEC ) No 97/85 of 14 January 1985 ( Official Journal L 13, p . 5 ), provided that in 1985 catches by vessels flying the flag of a Member State in the waters falling within the fisheries jurisdiction of the Faeroe Islands were to be limited to the quotas set out in the annex thereto . That annex fixed the catch quotas for France at 450 tonnes of redfish and 160 tonnes of flatfish .

3 The table of landings transmitted by the French State Secretariat for Maritime Affairs to the Commission on 6 February 1986, which is annexed to the application, shows that the catch quotas allocated to France in Faeroese waters for 1985 were exhausted in respect of flatfish between 18 and 21 June 1985 and in respect of redfish between 7 and 13 July 1985 .

4 As a result of exchanges of quotas carried out by the French authorities with other Member States in accordance with Article 5(1 ) of Regulation No 170/83 France' s catch quota for redfish was increased to 970 tonnes . However, it can be seen from the table of landings that the new quota, which was negotiated after the exhaustion of the initial quota and notified to the Commission in November 1985, was in its turn exhausted between 2 and 30 October 1985 . The total catches of redfish in Faeroese waters declared by France for 1985 were 984.7 tonnes . With regard to flatfish, total French catches for 1985 in Faeroese waters were 708.4 tonnes .

5 Moreover, it is not contested that it was only on 8 November 1985 that the French authorities gave their fishermen instructions to cease all fishing in Faeroese waters for redfish and flatfish .

6 By Regulation ( EEC ) No 3220/85 ( Official Journal 1985, L 303, p . 43 ), which entered into force on 16 November 1985, the Commission, acting on the basis of information communicated to it and on its own initiative, decided under Article 10(3 ) of Regulation No 2057/82 to stop fishing for redfish in Faeroese waters by vessels flying the flag of France . Similarly, by Regulation ( EEC ) No 3448/85 ( Official Journal 1985, L 328, p . 20 ), which entered into force on 7 December 1985, the Commission decided on its own initiative to stop fishing for flatfish in Faeroese waters by vessels flying the flag of France .

7 On the basis of the quota infringements, the Commission concludes that the French Republic failed to take the measures necessary to ensure observance of the quotas allocated to it for 1985 for catches of redfish and flatfish in Faeroese waters .

8 In support of its position, the Commission argues essentially that the quota infringements are the result of failure on the part of the French Republic to fulfil the obligation of Member States under Article 10(2 ) of Regulation No 2057/82 to take steps in good time to prohibit fishing provisionally .

9 The Commission also claims that the quota infringements may be the result of incorrect implementation by the French Republic of the obligations under Articles 6 to 9 of Regulation No 2057/82 to regulate and register catches, the obligations under Article 1(1 ) and ( 2 ) of that regulation to inspect fishing boats and punish any offenses uncovered or the obligation under Article 10(1 ) to charge to the applicable quota all catches made by fishing vessels flying the flag of France . Furthermore, those infringements could also be the consequence of the failure of the French authorities to adopt, in accordance with Article 5(2 ) of Regulation No 170/83, the measures necessary to determine the detailed rules for the utilization of the fishing quotas allocated to France .

10 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

The late closing of fishing

11 In this head of claim, the Commission alleges that the French Republic has failed to fulfil its obligations under Article 10(2 ) of Regulation No 2057/82 by failing to provisionally prohibit fishing for stocks as soon as the exhaustion of the quota appeared to be imminent . According to the Commission, that provision requires all the Member States to determine, on the basis of the information available concerning the level of catches, the date at which the quotas will probably be exhausted and to take appropriate measures in good time to prohibit fishing from that date . In this case the notice to cease fishing issued by the French authorities on 8 November 1985 was obviously inadequate inasmuch as it was issued nearly four months after the quotas in question had been exhausted and in any event was not legally binding . The Commission adds that the Member States' obligation to prohibit fishing provisionally as soon as exhaustion of the quotas can be foreseen cannot be made subject to the mere possibility that an exchange of quotas might take place either before the initial quota is deemed to be exhausted or after the provisional closure of fishing by the national authorities .

12 In determining whether the Commission' s argument is correct, it must be observed first that Article 10(2 ) of Regulation No 2057/82 provides that "each Member State shall determine the date from which the catches of a stock or group of stocks subject to quota made by the fishing vessels flying its flag or registered in that Member State shall be deemed to have exhausted the quota applicable to it for that stock or group of stocks . As from that date, it shall provisionally prohibit fishing for that stock or group of stocks by such vessels as well as the retention on board, the transhipment and the landing of fish taken after that date and shall decide on a date up to which transhipment and landings or final notifications of catches are permitted . The Commission shall forthwith be notified of this measure and shall then inform the other Member States ."

13 Article 10 of Regulation No 2057/82 is not expressly mentioned among the provisions to be complied with in the management of the catch quotas divided among the Member States for vessels fishing in Faeroese waters . Article 2 of Regulation No 6/85 merely provides that Member States and the masters of vessels flying the flag of a Member State must conform, as far as fishing in Faeroese waters is concerned, with Articles 3 to 9 of Council Regulation No 2057/82 .

14 Even though Regulation No 6/85 does not refer expressly to Article 10 of Regulation No 2057/82, the Member States must none the less comply with that provision, the applicability of which to this case is not contested by the French Republic, since it is a general rule essential to the effectiveness of any system for the conservation and management of fishery resources based on the division in the form of quotas allocated to the Member States of the catch volume available to the Community . Once the agreement on fisheries with the Government of Denmark and the Home Government of the Faeroe Islands concerning access to and conservation of fishery resources has laid down a limit for catches by Community fishermen in Faeroese waters and quotas have consequently been fixed for the Member States, the relevant rules concerning compliance with those quotas must be applied, even if there is no express reference to them in the regulation dividing the catch quotas between the Member States, if compliance with the agreement, and in particular compliance with the catch ceilings available to the Community, is not to be jeopardized . Article 10 of Regulation No 2057/82 is therefore applicable in this case .

15 The French Republic puts forward four arguments denying that the Commission' s claim is justified .

16 In the first place, the French Republic contends that it acted in good time and in an appropriate manner to prevent the quotas at issue becoming exhausted, by negotiating an increase in its redfish quota by way of an exchange of quotas with another Member State and by issuing an instruction to its fishermen to cease all fishing for flatfish and redfish as from 8 November 1985 . The French Republic points out that the instruction to cease fishing was effective since no catch of the species concerned was landed after 30 October 1985 .

17 With regard to that argument it should be stated that in accordance with Article 10(2 ) of Regulation No 2057/82 the Member States are required to prohibit fishing provisionally from the date on which catches subject to quota made by vessels flying the flag of that Member State or registered in it are deemed to have exhausted the quota in question . It follows from that provision that the Member States are required to adopt in good time all the measures necessary to prevent the quotas at issue being exceeded, so as to ensure compliance with the quotas allocated to the Member States for the purpose of conserving fishery resources .

18 Consequently, the French Republic was required to adopt binding measures to prohibit all fishing activity provisionally even before the quotas were exhausted . The French authorities were therefore under an obligation to stop fishing for flatfish not later than 21 June 1985 and fishing for redfish not later than 13 July 1985 .

19 It is thus clear that the notice to cease all fishing for the stocks concerned issued on 8 November 1985, which the French Republic has not shown to be binding in nature, was adopted too late to prevent the quotas at issue being exceeded .

20 In regard more particularly to the fact that in respect of redfish the French Republic merely entered into negotiations with a view to obtaining an increase in its quota by means of an exchange of quotas with another Member State, the Commission is right to argue that the Member States cannot rely on the mere possibility of exchanges of quotas in order to free themselves from their obligations under Article 10(2 ) of Regulation No 2057/82 . Such negotiations, the result of which is uncertain, cannot justify the continuation of fishing after the exhaustion of the quota, since if the attempt to increase the quota by means of an exchange fails or the quantities obtained are insufficient to cover the catches made any delay in the provisional closure of fishing is likely to aggravate the extent to which the quota is exceeded . It follows that any agreement for the exchange of quotas concluded with another Member State for the purpose of increasing a quota must take place either before the exhaustion of the initial quota or after the provisional prohibition of fishing .

21 The French Republic' s first argument must therefore be rejected .

22 In its second argument, the French Republic points to practical difficulties which prevented it from foreseeing the imminent exhaustion of the quotas in question . The French Republic contends that Commission Regulation ( EEC ) No 2807/83 of 22 September 1983 laying down detailed rules for recording information on Member States' catches of fish ( Official Journal 1983, L 276, p . 1 ), which provides for the introduction of a Community log-book, entered into force only on 1 April 1985, so that it was difficult to obtain reliable information in good time on the basis of which fishing could have been prohibited . Moreover, account should be taken of the fact that in 1985 the Community rules on the conservation of fishery resources were still new and untested . The French Republic points out that the fluctuating level of catches was also a source of difficulty, in particular where, as in the case of flatfish, the quota was small . The French Republic states in that regard that the sudden increase in the quantity of flatfish landed in June and July 1985, following the low level of earlier catches, meant in practice that the date on which the quota would be exhausted could not be foreseen .

23 The French Republic' s argument cannot be accepted . It is settled case law ( see the judgment of 2 February 1989 in Case 262/87 Netherlands v Commission (( 1989 )) ECR 225 ) that a Member State cannot rely on practical difficulties in order to justify its failure to adopt appropriate supervisory measures . On the contrary, according to that case law it is for the Member States responsible for implementing Community regulations in the context of the common organization of the market in fishery products to overcome those difficulties by adopting appropriate measures .

24 In particular, the French Republic may not rely on the alleged novelty of the Community quota system to justify its failure to fulfil its obligations . Regulation No 170/83 entered into force on 27 January 1983 and Regulation No 2057/82 on 1 August 1982, so that the supervisory measures provided for under those regulations were applicable well before the events at issue occurred . Consequently, if the supervisory measures had been observed and implemented correctly in this case they would have provided the French authorities with sufficient information to permit them to foresee the exhaustion of the stocks in question and act accordingly .

25 With regard to the argument concerning the entry into force on 1 April 1985 of the Community log-book, it should be emphasized that Regulation No 2807/83 merely introduced a uniform model for the log-book which masters of fishing vessels must keep . The obligation to keep a log-book indicating the quantities of each species caught and the date and location of such catches was already contained in Article 3 of Regulation No 2057/82 . Moreover, although it is true that Regulation No 2807/83 did not enter into force until 1 April 1985, it can be seen from the table of landings transmitted to the Commission by the French authorities that fishing boats flying the flag of France did not land any redfish or flatfish caught in Faeroese waters before 14 May 1985 .

26 With regard to the erratic levels of flatfish catches, consideration of the table of landings supplied to the Commission shows that although the total quantity landed in June ( 280.5 tonnes ) and July 1985 ( 264.7 tonnes ) was much larger than in May 1985 ( 8.2 tonnes ), the landings in June were regular both in rhythm and in the quantity landed . It follows that the French authorities could have foreseen the exhaustion of the flatfish quota on 21 June 1985 .

27 The French Republic contends, thirdly, that it has not been established with certainty that the quotas at issue were actually exceeded in this case . The conversion factors used to calculate the live weight of catches on the basis of the catches of cleaned fish landed have not been harmonized at Community level and thus entail a large degree of uncertainty . Furthermore, a considerable part of the fish at issue was caught in waters which are claimed by both the United Kingdom and the Faeroe Islands, with the result that it is not certain that the French catches actually took place in Faeroese waters .

28 With regard to the alleged uncertainty arising from the application of the conversion factor, it should be observed at once that the French authorities themselves used that factor to arrive at the catch figures transmitted to the Commission . Under those circumstances, the French Republic is not justified in contesting the reliability of that method of calculation at this stage . Moreover, even if there is a degree of uncertainty, it is limited and certainly cannot explain a quota infringement as great as that found to exist in this case in respect of flatfish .

29 With regard to the alleged dispute as to jurisdiction between the United Kingdom and the Faeroe Islands, it must again be pointed out that the French Republic simply transmitted to the Commission the figures relating to catches made by French vessels "in Faeroese waters" without raising any issue as to the delimitation of Community and Faeroese waters .

30 For the rest, it should be borne in mind that the preamble to the agreement on fisheries between the European Economic Community and the Government of Denmark and the Home Government of the Faeroe Islands provides that "it has been decided to establish around the Faeroe Islands, with effect from 1 January 1977, a fishery zone extending to 200 nautical miles off the coast within which the Faeroe Islands will exercise sovereign rights for the purpose of exploring, exploiting, conserving and managing the living resources thereof ". Under Article 2(b ) of that agreement, the Faeroese authorities are to determine annually "allotments for (( Community )) fishing vessels ... and the areas within which these allotments may be fished ". The list of allotments and fishing areas is transmitted to the Commission and serves as a basis for the division of quotas between the Member States . In the absence of any reservation in the fisheries agreement with regard to a jurisdictional dispute between the Faeroe Islands and the United Kingdom or any challenge to the areas indicated by the Faeroese authorities on the part of the Member State alleged to be concerned, the French Republic has not succeeded in casting doubt on the fact that all the catches relied on by the Commission in the context of these proceedings were taken in the area under the fisheries jurisdiction of the Faeroe Islands . Under those circumstances, the French Republic cannot rely on that argument to justify its failure to observe the quotas in this case .

31 Finally, in its fourth argument, the French Republic contends that in any event the total quota allocated to the Community for the stocks in question in Faeroese waters for 1985 was not exhausted, with the result that the fact that France exceeded its quotas did not injure the other Member States or jeopardize the agreement on fisheries with the Government of Denmark and the Home Government of the Faeroe Islands .

32 It is sufficient to point out in that regard that the total Community catch in Faeroese waters in 1985, the quantity of which became known only after the end of the year in question, cannot affect a Member State' s obligation to adopt in good time the measures necessary to prevent the exhaustion solely of the national quota made available to the Member State within the total allowable catch allocated to the Community .

33 It follows that the fourth argument put forward by the French Republic must also be rejected .

34 Since no argument put forward by the French Republic in answer to the Commission' s complaint can be upheld, it must be held that by failing to ensure observance of the quotas allocated to it for 1985 for catches of redfish and flatfish in Faeroese waters the French Republic has failed to fulfil its obligations under Article 10(2 ) of Regulation No 2057/82 read in conjunction with Article 1 of Regulation No 6/85 .

The secondary heads of claim

35 In its application the Commission further asserts that the French Republic has failed to fulfil its obligations under Articles 1(1 ) and ( 2 ), 6 to 9 and 10(1 ) and ( 2 ) of Regulation No 2057/82 and Article 5(2 ) of Regulation No 170/83 .

36 The Commission has simply stated that the mere fact that the quotas were exceeded shows that the abovementioned provisions were not complied with . However, the Commission has not advanced in support of its application any specific facts tending to show that the French Republic had not fulfilled its obligations under the abovementioned provisions .

37 The Court has consistently held ( see the judgment of 5 October 1989 in Case 290/87 Commission v Netherlands (( 1989 )) ECR 3083 ) that in proceedings brought under Article 169 of the Treaty the Commission is required to prove the allegation that the obligation has not been fulfilled and may not rely on any presumption in order to show that a Member State has failed to fulfil its obligations under Community law .

38 Under those circumstances, the secondary heads of claim put forward by the Commission must be rejected .

Costs

39 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the French Republic has failed in its submissions, it must be ordered to pay the costs .

On those grounds,

THE COURT

hereby :

( 1 ) Declares that by failing to ensure observance of the quotas allocated to it for 1985 for catches of redfish and flatfish in Faeroese waters the French Republic has failed to fulfil its obligations under Article 10(2 ) of Council Regulation ( EEC ) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States, read in conjunction with Article 1 of Council Regulation ( EEC ) No 6/85 of 19 December 1984 allocating catch quotas between Member States for vessels fishing in Faeroese waters;

( 2 ) For the rest, dismisses the application;

( 3 ) Orders the French Republic to pay the costs .