# C_2004300EN.01003602.xml

| 4.12.2004 | EN | Official Journal of the European Union | C 300/36 |
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4.12.2004

EN

Official Journal of the European Union

C 300/36

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Action brought on 21 October 2004 by the Kingdom of Spain against the Council of the European Union

(Case C-442/04)

(2004/C 300/70)

An action against the Council of the European Union was brought before the Court of Justice of the European Communities on 21 October 2004 by the Kingdom of Spain, represented by Enrique Braquehais Conesa, Abogado del Estado, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul Articles 1 to 6 of Council Regulation (EC) No 1415/2004 (1) of 19 July 2004 fixing the maximum annual fishing effort for certain fishing areas and fisheries, which implement Articles 3 and 6 of Council Regulation (EC) No 1954/2003 (2) of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EEC) No 2847/93 (3) and repealing Regulations (EC) No 685/95 (4) and (EC) No 2027/95 (5); and |
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annul Articles 1 to 6 of Council Regulation (EC) No 1415/2004 (1) of 19 July 2004 fixing the maximum annual fishing effort for certain fishing areas and fisheries, which implement Articles 3 and 6 of Council Regulation (EC) No 1954/2003 (2) of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EEC) No 2847/93 (3) and repealing Regulations (EC) No 685/95 (4) and (EC) No 2027/95 (5); and

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| — | order the Council of the European Union to pay the costs. |
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order the Council of the European Union to pay the costs.

Pleas in law and main arguments:

Infringement of the principle of non-discrimination

| (a) | because Regulation (EC) No 1415/2004, which is challenged in the present action, is a measure implementing Regulation (EC) No 1954/2003, specifically Articles 3 and 6 thereof relating to the maximum annual fishing effort for each Member State and for the various fishing areas and fisheries laid down in those provisions, has been challenged by the Kingdom of Spain (Case C-36/04) in so far as the years 1998 to 2002 are used as the reference period. That entails discrimination against the Spanish fleet on grounds of nationality, since for those years, pursuant to provisions in the Act of Accession of the Kingdom of Spain and the Republic of Portugal to the European Communities and in Regulations (EC) Nos 685/95 and 2027/95, the Spanish fleet's access was limited to ICES areas V b, VI, VII and VIII a, b, d and e; |
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(a)

because Regulation (EC) No 1415/2004, which is challenged in the present action, is a measure implementing Regulation (EC) No 1954/2003, specifically Articles 3 and 6 thereof relating to the maximum annual fishing effort for each Member State and for the various fishing areas and fisheries laid down in those provisions, has been challenged by the Kingdom of Spain (Case C-36/04) in so far as the years 1998 to 2002 are used as the reference period. That entails discrimination against the Spanish fleet on grounds of nationality, since for those years, pursuant to provisions in the Act of Accession of the Kingdom of Spain and the Republic of Portugal to the European Communities and in Regulations (EC) Nos 685/95 and 2027/95, the Spanish fleet's access was limited to ICES areas V b, VI, VII and VIII a, b, d and e;

| (b) | because the establishment of the sensitive area referred to in Article 6 of Regulation (EC) No 1954/2003, implemented by the contested regulation (Regulation (EC) No 1415/2004), also discriminates against the Spanish fleet, since the new sensitive area partly coincides with the so-called ‘Irish box’, where restrictions apply to the Spanish fleet in accordance with the Accession Treaty for the Kingdom of Spain and the Republic of Portugal. |
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(b)

because the establishment of the sensitive area referred to in Article 6 of Regulation (EC) No 1954/2003, implemented by the contested regulation (Regulation (EC) No 1415/2004), also discriminates against the Spanish fleet, since the new sensitive area partly coincides with the so-called ‘Irish box’, where restrictions apply to the Spanish fleet in accordance with the Accession Treaty for the Kingdom of Spain and the Republic of Portugal.

Misuse of power:

because protection of the sensitive area provided for in Article 6 of Regulation (EC) No 1954/2003, implemented by Regulation (EC) No 1415/2004 challenged in this action, should have been established by applying the procedures laid down in Regulation (EC) No 850/1998, which lays down technical measures for the protection of juveniles of marine organisms, and by reference to all the areas in respect of which it has been scientifically established that this condition is fulfilled.

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(1)  OJ L 258 of 5.8.2004, p. 1.

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(2)  OJ L 289 of 7.11.2003, p. 1.

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(3)  OJ L 261 of 20.10.1995, p. 5.

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(4)  OJ L 71 of 31.3.1995, p. 5.

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(5)  OJ L 199 of 24.8.1995, p. 1.

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