Report for the Hearing in Case 290/87
I — The relevant legislation and the course of the procedure prior to the action
Council Regulation (EEC) No 170/83 of 25 January 1983 established a Community system for the conservation and management of fishery resources (Official Journal 1983, L 24, p. 1). Articles 2, 3 and 4 of the regulation permit the Council to limit catches. The volume of the catches available is distributed between the Member States each year in the form of quotas. According to Article 5(2) of the regulation, the Member States are to determine, in accordance with the applicable Community provisions, the detailed rules for the utilization of the quotas allocated to them.
Those detailed rules for the utilization of quotas are set out in particular in 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). According to Article 1(1) of Regulation No 2057/82, each Member State must, within its waters, inspect fishing vessels of all the Member States in order to ensure compliance with all the regulations in force concerning conservation and control measures. According to Article 1(2), the competent authorities are to take penal or administrative action against the skipper of a vessel when an infringement is found to have been committed.
Moreover, under Article 9 of Regulation No 2057/82, each Member State is to notify the Commission monthly of the quantities of each stock or groups of stocks subject to TACs (total allowance catches) landed during the preceding month, stating where the catches were made and the nationality of the vessels.
Article 10(1) of the same regulation provides that all catches subject to quota made by fishing vessels flying the flag of a Member State or registered in a Member State are to be charged against the quota applicable to that State, irrespective of the place of landing. Moreover, under Article 10(2), each Member State is to determine the date from which the catches subject to quota made by fishing vessels flying its flag or registered in that Member State are to be deemed to have exhausted the quota in question. As from that date the Member State is provisionally to prohibit fishing for the stock or group of stocks in question. The measure is to be notified to the Commission forthwith; the Commission is then to inform the other Member States. Finally, under Article 10(3), the Commission is to fix, either following notification under paragraph (2) or on its own initiative, on the basis of the information available, the date on which, for a stock or group of stocks, the catches subject to quota made by the fishing vessels of a Member State are deemed to have exhausted the quota allocated. As from that date, the vessels in question are to cease fishing, transhipping or landing in respect of such catches.
On 10 December 1984, the Commission sent to the Netherlands Government a first letter of formal notice that a certain number of quotas allocated to the Netherlands for 1983 and 1984 had been exceeded. The Commission reserved the right to review the figures which it quoted in the light of any notifications of catches it received subsequently. The Netherlands Government replied by letter of 9 January 1985.
On 21 December 1984, the Commission sent to the Netherlands authorities a second letter of formal notice concerning the application, in 1983 and 1984, of the provisions relating to the recording of landings laid down in Article 9 of Regulation No 2057/82.
On 23 September 1985 the Commission sent to the Netherlands Government a third letter of formal notice relating to quotas exceeded in 1985. It again reserved the right to adjust the figures it quoted in the light of subsequent notifications of catches. Moreover, it considered that the Netherlands had not met in full its obligations to prohibit fishing, to inspect vessels, to take action with regard to any infringements and to control catches. The Netherlands Government replied by letter of 8 October 1985.
On 16 December 1986 the Commission sent to the Netherlands authorities a reasoned opinion concerning the breaches of quotas referred to in its letters of 10 December 1984 and 23 September 1985. As it had said it would, the Commission reviewed the figures quoted in its letters of formal notice. Moreover, it reiterated its complaints concerning the obligations to prohibit fishing, to inspect vessels, to take action with regard to infringements and to control catches.
In its reply of 12 February 1987, the Netherlands Government maintained that the quotas were exceeded not because the Netherlands had failed to observe the Community measures for limiting fishing but for reasons beyond the control of the national authorities. The Netherlands Government claimed that the quotas were exceeded, in particular, because of illegal catches or inaccurate declarations by fishermen. It also claimed that the Community measures for limiting catches imposed obligations on national authorities concerning the means to be used and not the result to be achieved. The Netherlands Government maintained that it took all the steps necessary to ensure that the quotas were adhered to.
II — Written procedure and conclusions of the parties
The Commission's application was received at the Court Registry on 28 September 1987.
The written procedure followed the normal course. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
The applicant claims that the Court should:
The Kingdom of the Netherlands concludes that the Court should:
III — Submissions and arguments of the parties
1. Admissibility
The Netherlands Government considers that the Court should dismiss the action as inadmissible because of the imprecise nature of the application.
In that regard, it points out first of all that it has acknowledged that quotas for 1983, 1984 and 1985 were exceeded; consequently, they can no longer be the subject-matter of proceedings to establish a failure to fulfil obligations.
The Netherlands Government also claims that the Commission did not make specific criticisms of the Netherlands regulations designed to implement the measures for controlling and recording catches, provided for in Articles 6 to 10 of Regulation No 2057/82.
With regard to the obligations to inspect fishing vessels and to take action against infringements, it claims that they are formulated in such general terms that it is impossible to state in what respect the Netherlands regulations which implement them are inadequate.
The Commission maintains, however, that the subject-matter of the proceedings is clearly defined since it concerns two specific submissions: first, fishing was prohibited too late and the fishing bans imposed were inadequately supervised, and, secondly, the obligations to inspect fishing vessels, to take action with regard to infringements and to control catches were incorrectly implemented. Therefore, according to the Commission, the Court should declare the application admissible.
2. Substance
The late prohibition of fishing and the inadequate supervision of the fishing bans
The Commission points out first of all that Article 10(2) of Regulation No 2057/82 requires the Member States to determine the date by which a quota is deemed to have been exhausted and to prohibit, as from that date, the fishing, retention on board, transhipment and landing of the stocks in question. That provision contains a specific obligation as to the result to be achieved.
According to the Commission, the fact that quotas have been found to have been exceeded therefore allows it to assume that the Netherlands authorities have not fulfilled in good time their obligation to prohibit fishing. Consequently, in order to avoid being found to be in breach of its obligations, the Netherlands Government must prove that the quotas were exceeded either as a result of catches taken in breach of a fishing ban which had already been imposed or as a result of landings in foreign ports which it could not have been aware of or have foreseen, made prior to a decision to prohibit fishing. However, the Netherlands Government has not adduced such proof.
With regard to any illegal catches, the Netherlands Government does not put forward any figures for 1983 and 1984. Moreover, the figures produced for 1985 do not, in the Commission's view, prove that the quotas were exceeded in most cases after fishing was prohibited. The Netherlands Government does not put forward any unforeseen or unforeseeable circumstances which prevented it from taking action in good time to prevent quotas from being exceeded.
Moreover, with regard to landings of which the Netherlands Government was not aware, the Commission claims that it may not rely on the possibly late communication of information regarding landings made in the ports of other Member States. Commission Regulation 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), requires the masters of vessels to dispatch their landing declarations to the authorities of the country whose flag their vessel is flying within 48 hours of completion of landing (point 4.2.2 of Annex V to the regulation). Moreover, landings outside the Netherlands played hardly any part in the exceeding of the quotas in question.
The Commission points out, finally, that if it is to be assumed that the wide margin by which the quotas were exceeded was due to illegal catches, serious doubts arise concerning the effectiveness of the control measures and the measures to deal with infringements adopted by the Netherlands authorities. That justifies the presumption that the Netherlands has not fulfilled its obligations to inspect vessels and to take action with regard to infringements under Article 1(1) and (2) of Regulation No 2057/82.
The Netherlands Government, however, claims that it prohibited fishing in good time. Moreover, a mere finding that quotas have been exceeded does not enable the Commission to conclude that the Netherlands has failed to fulfil its obligation to prohibit fishing. The Netherlands Government is of the opinion that, in general, the fixing of quotas imposes upon Member States an obligation only as to the means to be used, in other words, to endeavour to prevent any quotas from being exceeded.
In order to prove that it used all necessary care in fulfilling the obligation as to the means to be used, the Netherlands Government points out that, in most cases, it prohibited fishing at a time when the quota was not yet exhausted and that, in order to prevent quotas from being exceeded, in fixing the date upon which its decisions took effect, it took into account the probable volume of catches which would be made between the adoption of the decision to prohibit fishing and its entry into force by publication in the Nederlandse Staatscourant. With regard to the few cases when fishing was prohibited after the quota was exhausted, the Netherlands Government maintains that the quotas were exceeded so minimally that it is not possible to infer that the Netherlands failed to fulfil Community obligations.
The Netherlands Government also claims that it is not possible to infer any negligence whatsoever on its part from the fact that, in certain cases, the Commission decided to prohibit fishing on its own initiative pursuant to Article 10(3) of Regulation No 2057/82. Owing to the system of notification laid down by that regulation, data relating to landings in foreign ports were available to the Commission before they were available to the Netherlands authorities. Since the Commission had the data earlier than the Netherlands authorities, it was also able to decide to prohibit fishing earlier than they could.
Incorrect fulfilment of the obligations to inspect vessels, to take action against infringements and to control catches
In this regard, the Commission maintains that the fact that a prohibition of fishing was not imposed, or that it was imposed too late, means that the Netherlands incorrectly fulfilled its obligations relating to the utilization of its quotas under Article 5(2) of Regulation No 170/83, and, in particular, that it failed to fulfil its obligations to control and report catches, under Articles 6 to 10 of Regulation No 2057/82.
The Commission maintains that it did not make any specific submissions concerning the measures adopted by the Netherlands to manage quotas and record catches since those measures are the cause of a failure to fulfil an obligation as to the result to be achieved, namely the prohibition of fishing, laid down in Article 10 of Regulation No 2057/82. In order to avoid a finding that it has failed to fulfil its obligations, the Netherlands Government must prove that unforeseen and unforeseeable circumstances prevented it from fulfilling its obligations, which it has not done.
The Netherlands Government, however, claims that it adopted measures for the utilization of the quotas allocated to it. Moreover, even if the quotas were exceeded because of illegal catches and landings, the Commission is wrong to conclude from that that the Kingdom of the Netherlands did not adopt adequate measures for inspecting vessels, taking action with regard to infringements and controlling catches.
The Commission replies that the endeavours made by the Netherlands authorities since 1983 are still inadequate.
The Commission replies that the Netherlands ought to have adopted more severe penal or administrative measures. Such measures could have included, for example, the confiscation of illegally landed catches.
In that regard, it points out first of all that since 1984 it has required sellers and buyers to keep records which enable verification of the accuracy of the declarations of catches made by fishermen and, consequently, detection of any discrepancies between declarations of catches and catches actually made. The Netherlands Government adds, moreover, that some fishing quotas for certain specific zones were exceeded only because fishermen made inaccurate declarations regarding the fishing zones. The Netherlands Government points out that it has attempted to resolve the problem by adopting national measures. In particular, it has proposed exchanges of quotas for the zones concerned to other Member States pursuant to Article 5 of Regulation No 170/83. However, those exchanges, which require the cooperation of other Member States, have not always been possible.
The Netherlands Government also points out that there are problems related to the recording of catches on account of landings made by Netherlands fishing vessels in foreign ports. In that regard, it points out that when it fixed the date of provisional prohibition of fishing, it could base its decision only on the information which was available at the time and that, in that regard, it used the information which appeared to it to be most complete. However, that does not prevent information sent to it subsequently by the Commission or by other Member States from showing that quotas have been exceeded.
Finally, the Netherlands Government maintains that it has adopted a certain number of measures to limit the capacity of the Netherlands fishing fleet. In particular, it decided to stabilize the engine power of a part of the fishing fleet with effect from 29 November 1984.
The Commission replies, first, that the Netherlands Government cannot use inaccurate declarations made by fishermen as justification. The Netherlands authorities are under an obligation to verify those declarations and, if necessary, to correct them.
Nor can the fact that information relating to landings in other Member States may have been transmitted too late be used as justification by the Netherlands Government. Regulation No 2807/83 laying down detailed rules for recording information on Member States' catches of fish, cited above, requires masters to notify within 48 hours the authorities of the country whose flag they are flying of catches landed in a foreign port.
The Commission also observes that the other control measures adopted by the Netherlands have proved to be inadequate or were adopted after the period at issue in these proceedings.
The Commission claims, finally, that the Netherlands Government caused the quotas to be exceeded by authorizing an increase in the capacity of the Netherlands fishing fleet. It was inevitable that the increase would lead to more tensions in the supervision of the observance of the fishing quotas.
1 Language of the case: Dutch.