Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. In these proceedings the Kingdom of Spain and the French Republic challenge Commission Regulation No 3151/87.
2. Before making any analysis, it is appropriate to bear in mind that those agreements fall within the category of compensation agreements.
3. That having been said — and the Report for the Hearing should be consulted for further details — it should be noted that in the present proceedings the applicant States' main contention is that the Commission was not competent to adopt Regulation No 3151/87. The arguments advanced in support of that submission do not really seem very clear or consistent, and the same applies to the Commission's counterarguments. The nub of the applicants' reasoning seems to be as follows. In their opinion, Article 10 is not an appropriate legal basis in this case. That provision does not, they maintain, confer on the Commission the power to impose controls (which result in obligations to which private persons and Member States are subject) in relation to fishing carried on in the waters of countries where no Community rules for the conservation and management of resources are in force.
4. In the first place the Commission makes the general observation that the Community rules for the conservation and management of fishery resources and, consequently, the measures for the monitoring thereof apply to fishing activities wherever carried out.
5. I should point out in the first place that in 1983 when the new guidelines for the fishing policy were laid down — the Blue Europe — the Community rules for conservation and management were conceived as a set of measures intended essentially to operate in Community waters, subject to any specific provisions regarding fishing rights in particular bilateral or multilateral agreements.
6. As far as the control measures laid down by Regulation No 2241/87 are concerned, there is nothing in the wording of that regulation to support the conclusion that those controls relate to fishing outside Community waters or, in any event, to zones where the Community rules limiting catches do not apply.
7. The Commission also stated that in a number of regulations imposing quotas for fishing in non-Community waters provision is made for the application of the controls with which Regulation No 2241/87 is concerned. They are Regulation No 3978/87 for Norway, Regulation No 3983/87 for Greenland, Regulation No 3984/87 for the Regulatory Area of the North-West Atlantic Fisheries Organization (NAFO), and Regulation No 3981/87 for the Faeroe Islands. However, it should be made clear that in all those cases it was the Council which, by means of its regulation, explicitly provided (and in the case of Regulation No 3984/87 laid down detailed rules) for the application of the controls in question to fishing in those zones.
8. I would point out that prima facie considerable doubt already appears to surround the lawfulness of the Commission's extension (under Article 10 of Regulation No 2241/87) of the complex control procedures in question to a situation and for purposes which are objectively different from those which that regulation purports to pursue.
9. Let me say immediately that this second interpretation seems to me to be more consistent with the wording of Article 10 and the recital associated with it. The provision in question in fact merely provides for the possibility of extending the control measures to additional stocks. If additional stocks, as stated, are those which are not subject to TACs, it follows that that provision presupposes that the control measures are already being applied to stocks which, by contrast, are subject to TACs. In other words, extension is possible only in a situation where there are stocks which are, at the same time, subject to TACs and to the related control measures.
10. This interpretation, moreover, does not detract from the useful effect of the provision and, at the same time, defines its meaning in the light of its legislative context and of the whole rationale of Regulation No 2241/87.
11. That having been said, it should be noted that the interpretation advocated by the Commission, besides not being supported by the wording of the legislation, is conducive, by contrast, to the creation of an executive power which entirely disregards the purpose and the scheme of the regulation containing the provision which confers the power. As stated, the Commission purports in this case to be empowered to impose the control measures provided for in Regulation No 2241/87 on fishing activity carried on in areas where the Community rules on the conservation of fishery resources do not apply. However, the control measures, as has been seen, were extended for reasons relating exclusively to the financial management of the fisheries agreements with developing countries.
12. Is such a result justified in the light of the principles which govern the exercise of the Commission's executive powers?
13. I do not therefore consider that it is necessary to analyse in details the other two grounds of annulment relied on by the applicants, namely the lack of an adequate statement of reasons and the existence of a manifest error of appraisal.
14. In conclusion, I consider that Commission Regulation No 3151/87 is void by virtue of the Commission's lack of authority to adopt it.
1 Original language: Italian.
2 OJ 1987, L 300, p. 15.
3 OJ 1987, L 207, p. 1.
4 OJ 1982, L 220, p. 1.
5 See D Charles-Le Bihan- La politique commune de la pèche, la troisième generation de normes, Revue trimestrielle de droit européen, 1988, No 3, p 481, and A Saccheium La politica della pesca nella CEE, Foro italiano, 1988, IV, p 452
6 Sec J. M Sobrino Heredia. Acuerdos de pesca y desarrollo referencia a la practica convencional pesquera de la Comunidad Europea, La Ley, 1987, suppl. No 28, p. 1
7 OJ 1983, L 24, p. 14.
8 OJ 1983, L 24, p. 1.
9 Article 1 of the later regulation, No 3094/86 (OJ 1986, L 228, p. 1) uses similar terms.
10 OJ 1983. L 24, p 30
11 OJ 1987, L 375, p 1
12 Article 2 provides as follows. TACs for stocks or groups of stocks to which Community rules apply and the snares of these catches available to the Community are hereby fixed for 1988 as set out in the annex
13 OJ 1987, L 375, p. 35.
14 OJ 1987, L 375, p. 61.
15 OJ 1987, L 375, p. 63.
16 OJ 1987, L 375, p. 51.
17 The onerous nature of the agreements in question is in fact well known and is partly inherent in their nature in so far as they arc administered not solely in accordance with economic criteria hut also in pursuit of developmentcooperation ohicctivcs Sec Sobrino Heredia, op cit., and Charles-Le Bihan, op cit., p 490
18 See judgment of 30 October 1975 in Cise 23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279, paragraph 10.
19 See judgment of 17 December 1970 in Case 25/70 Einfuhrund Vorratsstelle Jur Getreide und Futtermittel v Koster, Berndt ti Co. [1970] ECR 1161, paragraph 16.
20 See judgment No 53 of the Italian Corte Suprema di Cassazione of 14 January 1971.