Opinion of the Advocate General — ECLI:EU:C:1998:410
Date: 1998-09-17
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Fisheries policy
Procedure: Action for annulment - unfounded
Origin: Spain

summary that, 
for both zones, different TACs and quotas 
had been fixed initially, these being shared 
between Spain and France in Zone VIII and 
between Spain and Portugal in the other 
zone. The last-mentioned regulation now 
allowed Portugal to fish part of its TAC 
from Zones IX and X, CECAF 34.1.1 in 
French waters of ICES Zone VIII. However, 
Portugal transferred that quota to France. 
13. Spain's present action is directed 
against those lines of conduct. 
14. The Spanish Government complains, 
first, that, by allowing part of the quota of 
anchovy which had been allocated to 
Portugal in Zone IX to be fished not in 
that zone but in Zone VIII, the TAC fixed 
for Zone VIII is being increased from 
33 000 tonnes to 38 008 tonnes, without 
there being any new scientific data to 
justify it. Neither the optimum utilisation 
of the factors of production nor the stabi­
lity of the market is being pursued by 
means of the contested provisions. There is 
thus a failure to observe the objectives of 
the common fisheries policy set out in 
Article 39 of the EC Treaty. 
15. In addition, it argues that, since there 
exist two independent stocks of anchovy, 
the TAC fixed for 1995 in Zone VIII is 
being increased, without any scientific basis 
whatsoever, by means of the contested 
provisions. That is in breach of the objec­
tive of Regulation No 3760/92, which lies 
in a rational and responsible exploitation of 
resources. A species of anchovy is even 
being overexploited by means of the con­
tested provisions. 
16. It further argues that, in so far as the 
amount by which the quota of anchovy in 
Zone VIII has been amended, that is, 5 008 
tonnes, is awarded entirely to Portugal, the 
principle of relative stability is being 
infringed. Portugal has never had a quota 
in that zone, with the result that the award 
of a quota is in breach of the requirement 
to maintain the fixed percentage for each of 
the Member States which share the alloca­
tion of that stock. 
17. The Spanish Government claims that 
the Court should: 
— annul the final sentence in point 1.1.(i) 
of Annex IV to Council Regulation 
7 — Council Regulation (EC) No 746/95 of 31 March 1995 
amending Regulation (EC) No 3362/94 fixing, for certain 
fish stocks and groups of fish stocks, the total allowable 
catches for 1995 and certain conditions under which they 
may be fished (OJ 1995 L 74, p. 1). 
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OPINION OF MR ALBER — CASE C-179/95 
(EC) No 685/95 of 27 March 1995 on 
the management of the fishing effort 
relating to certain Community fishing 
areas and resources; 
— annul the fifth heading, on anchovies, 
in Annex I to Council Regulation (EC) 
No 746/95 of 31 March 1995 amend­
ing Regulation (EC) No 3362/94 fix­
ing, for certain fish stocks and groups 
of fish stocks, the total allowable 
catches for 1995 and certain conditions 
under which they may be fished; 
— order the defendant institution to pay 
the costs. 
The Council contends that the Court 
should: 
— dismiss the action, 
and 
— order the applicant to pay the costs. 
C — Opinion 
18. Since the Spanish Government pleads, 
essentially, infringement of Article 39 of 
the EC Treaty on the one hand, and an 
infringement of Regulation No 3760/92 on 
the other, those two points must be exam­
ined separately below. 
Infringement of Article 39 of the EC Treaty 
19. The Spanish Government claims, first, 
that the TAC of 33 000 tonnes originally 
fixed for Zone VIII was adopted on the 
basis of scientific data and was regarded by 
the Council as the appropriate TAC to 
ensure a rational and responsible exploita­
tion of resources. Moreover, that TAC has 
undergone only insignificant fluctuations 
since Spain's accession and corresponds to 
an average of the catches made in the 
1970s. Previous trends were thus taken into 
account and a sustainable exploitation 
ensured. If the Council now amends that 
TAC de facto from 33 000 tonnes to 
38 008 tonnes, it will be breaking the 
continuity of the previous arrangements 
without having been persuaded of the need 
to do so by new scientific data. The 
Council's existing discretion when adopting 
provisions under the common fisheries 
policy must also keep within the limits set 
by the Treaty. However, if (as in this case) 
an exchange of quotas for different species 
in different fishing zones is now allowed, 
that is in breach of the objectives set out in 
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SPAIN V COUNCIL 
Article 39(a) and (c) of the EC Treaty, 
namely the optimum utilisation of the 
factors of production and the stability of 
the market. 
20. The Council and the Commission rely 
essentially on the broad discretion which 
they have when adopting the contested 
measures. On the one hand, neither of the 
abovementioned stocks of anchovy were 
jeopardised. Moreover, the TACs fixed for 
those stocks were only precautionary. It is 
true that they had binding effect, but, since 
they were not adopted in the light of 
established scientific data, they can cer­
tainly be amended. Furthermore, there 
is nothing unusual about exchanges 
between different zones and between dif­
ferent species and they have often been 
carried out in the past. 
21. Even if scientific advice on the indivi­
dual stocks had been available, the Council 
would not have been obliged to follow it 
blindly when adopting the contested provi­
sions. In this case, acting within the scope 
of its discretion, the Council weighed the 
interests of the common fisheries policy 
against the interests of the Community in 
further integrating Spain and Portugal into 
the Community. The outcome of that 
process is reflected in the contested regula­
tions. 
22. It should first be pointed out that the 
Court has consistently held that in pursuing 
the objectives of the common fisheries and 
agricultural policy the Community institu­
tions must secure the permanent harmoni­
sation made necessary by any conflicts 
between those objectives taken individually 
and, where necessary, give any one of them 
temporary priority in order to satisfy the 
demands of the economic factors or condi­
tions in view of which their decisions are 
made. 8 The Court has also held that, in 
matters concerning the common agricul­
tural policy, the Community legislature has 
a broad discretion which corresponds to 
the political responsibilities imposed upon 
it by Articles 40 and 43 of the Treaty. 9 
23. Judicial review of measures adopted by 
the Council must, having regard to the 
discretion conferred on the Council in the 
implementation of the common agricul­
tural policy, be limited to examining whe­
ther the measure in question is vitiated by a 
manifest error or misuse of powers, or 
whether the Council has manifestly excee­
ded the limits of its discretion. 10 
24. In the Spanish Government's submis­
sion, there is an infringement of Article 39 
in the mere fact that the TAC for Zone VIII 
was substantially amended without this 
having been necessary in the light of 
scientific findings. 
8 — Judgments in Case C-280/93 Germany v Council [1994] 
ECR I-4973, 5057, at paragraph 47, Case C-311/90 Hierl 
[19921 ECR I-2061, at paragraph 13, and Case C-405/92 
Mondiet [1993] ECR I-6133, at paragraph 51. 
9 — Judgment in the Germany v Council case (cited in footnote 
8) at paragraph 47; judgment in the Hierl case (cited in 
footnote 8) at paragraph 13; and judgment in Joined Cases 
C-267/88 to C-285/88 Wuidart and Others [1990] ECR 
I-435, at paragraph 14. 
10—Judgment in Case C-331/88 Fedesa and Others [1990] 
ECR I-4023, at paragraph 8. 
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OPINION OF MR ALBER — CASE C-179/95 
25. It should be observed in that regard 
that the absence of such advice cannot 
prevent the Council from adopting such 
measures as it deems necessary for achiev­
ing the objectives of the common fisheries 
policy. 11 In connection with the taking into 
account of scientific data by the Council, 
the Court has held that judicial review 
must, having regard to the discretion con­
ferred on the Council in the implementa­
tion of the common agricultural policy, be 
limited to examining whether the measure 
in question is vitiated by a manifest error or 
misuse of powers, or whether the authority 
in question has manifestly exceeded the 
limits of its discretion. 
26. In the present case, the Council ini­
tially fixed a precautionary TAC of 
33 000 tonnes for Zone VIII. That TAC 
was not adopted in the light of conclusive 
scientific findings but, rather, in the light of 
the previous trends of catch quotas in the 
zones concerned. 
27. However, it does not follow from 
Spain's mere assertion that the Council 
may not amend the TAC in the absence of 
established scientific findings, that the 
Council manifestly misused its powers 
when it adopted the measures in question. 
Moreover, it is beyond dispute that the 
stock in Zone VIII is not jeopardised by the 
exchange of catch quotas between Portugal 
and France. 
28. There is therefore no obvious basis for 
suggesting that the slight increase in catch 
quotas, which in the final analysis was 
connected with the determination of the 
possibilities of exchange between Portugal 
and France, was adopted in breach of 
Article 39(a) and (c) of the EC Treaty. 
Infringement of Regulation No 3760/92 
(a) Infringement of the requirement to 
ensure the rational and responsible exploi­
tation of resources 
29. In the Spanish Government's submis­
sion, the contested provisions are in breach 
of the objective contained in Regulation 
No 3760/92 of a rational and responsible 
exploitation of resources. According to the 
Spanish Government, that arises essentially 
from the fact that the ultimate effect was 
that a single TAC was fixed for two 
different and completely independent 
stocks of anchovy situated in different 
zones, namely Zone VIII and Zones IX 
and X, CECAF 34.1.1. On the one hand, 
the TAC in force for Zone VIII is substan­
tially amended without this being necessary 
on the basis of new scientific findings. On 
the other hand, Regulation No 3760/92 
contains procedural rules for the amend­
ment of a TAC. Those rules are circum­
vented by the Council's conduct of allowing 
11 — Judgment in the Mondiet case (cited in footnote 8) at 
paragraph 31. 
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SPAIN V COUNCIL 
the exchange of fishing opportunities 
between Portugal and France. 
30. The Council and the Commission again 
rely in this respect on the broad discretion 
which they have in the adoption of provi­
sions under the common fisheries policy. 
They further argue that their chosen line of 
conduct did not entail the risk of over­
fishing in Zone VIII. That risk would have 
arisen only if a new overall TAC had been 
fixed for that zone, which, under the 
distribution formula laid down in the Act 
of Accession, that is, 90% for Spain and 
10% for France, would have had to be 
approximately 50 000 tonnes. In order to 
counter such a risk of overfishing, the 
transfer of fishing opportunities (of 5 008 
tonnes) between Portugal and France even­
tually took place under Article 9 of Reg­
ulation No 3760/92. In the end, the Coun­
cil merely adopted what had been negoti­
ated between the Member States concerned 
within the limits of the possibilities allo­
cated to them, but without jeopardising the 
stock of anchovy. The defendants also refer 
to the fact that fixing a TAC is not the only 
way to conserve stocks and that in this case 
it was done only on a precautionary basis 
since at the material time there were no 
established scientific findings relating to the 
stocks. 
31. As is apparent from the second recital 
in the preamble to Regulation No 3760/92, 
the objective of that regulation is 'to 
provide for rational and responsible exploi­
tation of living aquatic resources and of 
aquaculture, while recognising the interest 
of the fisheries sector in its long-term 
development and its economic and social 
conditions and the interest of consumers 
taking into account the biological con­
straints with due respect for the marine 
eco-system'. 
32. Moreover, as stated in Article 2(2), the 
purpose of that regulation is to establish a 
framework for the conservation and pro­
tection of resources. The Council is there­
fore authorised to fix the respective TACs 
and to allocate the fishing opportunities 
between Member States. However, in that 
respect also, the Court has consistently held 
that in the implementation of the common 
agricultural policy the Council has a broad 
discretion, with the result that judicial 
review must be limited to examining whe­
ther the exercise of that discretion is 
vitiated by a manifest error or misuse of 
powers, or whether the authority in ques­
tion did not clearly exceed the bounds of its 
discretion.12 
33. It should also be pointed out that the 
Council is required to evaluate a complex 
economic situation when, acting on the 
basis of Article 8(4) of Regulation 
No 3760/92, it determines the TACs and 
distributes the fishing opportunities 
between Member States. 
34. The discretion which the Council has in 
the implementation of the Community's 
12 — Judgments in Case C-4/96 NIFPO and Northern Ireland 
Fishermen's Federation [1998] ECR 1-681, at paragraph 
42, and Case C-122/94 Commission v Council [1996] ECR 
I-881, at paragraph 18. 
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OPINION OF MR ALBER — CASE C-179/95 
agricultural policy in connection with the 
evaluation of a complex economic situation 
is not limited solely to the nature and scope 
of the measures to be taken but also, to 
some extent, to the finding of basic facts 
inasmuch as, in particular, it is open to the 
Council to rely if necessary on general 
findings.13 Since, in claiming that Regula­
tion No 3760/92 has been infringed, the 
Spanish Government again relies essentially 
on the absence of scientific advice and, 
moreover, merely complains that different 
stocks from different fishing zones may not 
be made subject to a common TAC, it has 
failed to show that the Council manifestly 
misused its powers. 
35. On the contrary, the Spanish Govern­
ment concurs with the argument put for­
ward by the Council and the Commission 
that the transfer of the Portuguese quota to 
France does not directly jeopardise the 
stock in Zone VIII, but that an overall 
increase in the TAC for Zone VIII would 
have jeopardised that stock. Since, under 
Article 4(2)(b) and (c), the Council is 
entitled to limit exploitation rates and to 
set quantitative limits on catches, the 
Spanish Government's submissions in the 
present case are not sufficient to establish a 
manifest misuse of powers on the part of 
the Council. After weighing the various 
interests of the fishing nations concerned, 
the Council eventually concluded that, even 
in the absence of established scientific 
findings, it could authorise the exchange 
of fishing possibilities between Portugal 
and France. Even though this involved 
different stocks from different zones, it 
may nevertheless be assumed that, overall, 
the stocks are not jeopardised. 
36. That means, however, that the objec­
tive of rational and responsible exploitation 
of r e s o u r c e s , wh ich R e g u l a t i o n 
No 3760/92 was adopted to achieve, has 
not been infringed. 
37. In that respect, the Kingdom of Spain's 
action is unfounded. 
(b) Infringement of the principle of relative 
stability 
38. In this connection, the Spanish Govern­
ment claims that the contested regulations 
fail to observe the principle of relative 
stability. It is apparent from Regulation 
No 3760/92 that the Council is obliged to 
observe that principle when distributing the 
TACs between fishing nations. With regard 
to the zone in question, Zone VIII, the Act 
of Accession fixed a distribution of 90% 
for Spain and 10% for France. By author­
ising the exchange between Portugal and 
France, the Council awarded Portugal a 
quota for the first time in a zone in which it 
had never had a quota. As a result of the 
exchange, the TAC was increased de facto 
and as a result there was also a deviation 
from the distribution formula originally 
13 — Judgment in the NIFPO case (cited in footnote 12) at 
paragraph 42. 
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SPAIN V COUNCIL 
adopted. It is true that Article 9 of Regula­
tion No 3760/92 provides for the possibi­
lity of exchange, but that is merely intended 
to facilitate the distribution of the respec­
tive TACs as national quotas. However, 
once a TAC has been fixed, it is specifically 
not permitted to amend it for different 
zones by circumventing the provisions in 
force and to effect a redistribution. In 
particular, in this context, account must 
also be taken of the long period of seven 
years in total, which results in a funda­
mental redistribution of the quotas. It 
follows from the spirit and purpose of the 
possibility of exchange provided for in 
Article 9 that, while particular quotas in 
specific zones may certainly be transferred 
to other fishing nations, relative stability 
nevertheless continues to apply to each 
individual zone and stock. That principle 
therefore concerns a particular species of 
fish in a particular fishing zone. 
39. The Council and the Commission 
counter that line of argument by referring 
again to their broad discretion when adopt­
ing legislation in the sphere of the common 
fisheries and agricultural policy. They con­
tend moreover that the contested measures 
were necessary in order to ensure further 
integration of Spain and Portugal into the 
Community. In view of the prolonged and 
difficult accession negotiations with both of 
those countries, certain compromises were 
reached at that time, which regulated the 
fisheries policy to an extent acceptable to 
all the parties concerned. However, in order 
to take account of subsequent develop­
ments, the Council is entitled, within the 
scope of the discretion which it has, to 
derogate from the arrangements made at 
that time. The possibilities of exchange 
authorised between Portugal and France 
constituted such a derogation and the 
adjustment of a compromise. However, 
since conflicts of interest are always liable 
to occur in connection with fisheries policy, 
the Council must have the freedom to give 
preference to certain interests over others 
when it adopts particular measures. 
40. Furthermore, the TAC originally fixed 
for Zone VIII has manifestly not been 
amended, since the quota promised to 
France must still be attributed to Zones 
IX and X, CECAF 34.1.1. That may not be 
absolutely in accordance with a strict 
interpretation of the concept of relative 
stability, but a broad view is called for in 
this context. Such an approach is plainly 
necessary in the light of the aforementioned 
problems of integrating Spain and Portugal, 
as major fishing nations, into the common 
agricultural market. 
41. It should first be pointed out that under 
Article 8(4) of Regulation No 3760/92 the 
Council is required to distribute the fishing 
opportunities between Member States in 
such a way as to assure each Member State 
relative stability of fishing activities for 
each of the stocks concerned. That stability 
must safeguard the particular needs of 
regions where local populations are espe­
cially dependent on fisheries and related 
activities. 
42. The Court has held that it follows '... 
that the aim of the quotas is to ensure for 
each Member State a share of the Commu-
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OPINION OF MR ALBER — CASE C-179/95 
nity's TACs, determined essentially on the 
basis of the catches from which traditional 
fishing activities, the local populations 
dependent on fisheries and related indus­
tries of that Member State benefited before 
the quota system was established'. 14 
43. Likewise, in its judgment in the 
Romkes case, 1 5 the Court held that the 
requirement of relative stability must be 
understood as meaning that in a distribu­
tion of quotas each Member State is to 
retain a fixed percentage. 
44. Article 8(4)(ii) thus also lays down that 
the distribution of the fishing opportunities 
between Member States is to be done in 
such a way as to assure each Member State 
relative stability of fishing activities for 
each of the stocks concerned. 
45. In general, it is for the Council, when 
allocating fishing opportunities among the 
Member States, to reconcile, for each of the 
stocks concerned, the interests represented 
by each Member State with particular 
regard to its traditional fishing activities 
and, where relevant, its local populations 
and industries dependent on fishing. 16 
46. In the present case, it should be noted 
that the Council authorised Portugal to fish 
part of its quota from Zones IX and X, 
CECAF 34.1.1 in Zone VIII. However, that 
quota is transferred in its entirety to 
France. It is clear from the submissions of 
the parties that Portugal has traditionally 
never fished in Zone VIII. It should also be 
noted that the Council chose that course of 
action, that is, the exchange of fishing 
opportunities, in order to avoid having to 
make an overall increase in the TAC for 
Zone VIII. 
47. However, since, as is apparent from the 
foregoing, the Council is required to weigh 
the interests of the parties concerned in the 
light of the principle of relative stability 
when it distributes the fishing opportuni­
ties, it should first be pointed out that 
Portugal originally had no interest whatso­
ever in Zone VIII. Moreover, since the 
exchange of fishing opportunities between 
two non-adjacent fishing zones resulted de 
facto in an increase in the TACs and in a 
redistribution of the catch quotas fixed in 
percentage terms, thereby circumventing 
the relevant provisions (retention of the 
90:10 quota ratio), it must be held that the 
contested regulations infringe the principle 
of relative stability. 
48. The line of argument put forward by 
the Council and the Commission concern­
ing the difficulties of integrating Spain and 
Portugal into the Community cannot be 
upheld in the present case. With regard to 
those problems, a jointly-agreed political 
14 — Judgment in the NIFPO case (cited in footnote 12) at 
paragraph 47, with further references. 
15 — Case 46/86 Romkes [1987] ECR 2671, at paragraph 17. 
16 — Judgment in the NIFPO case (cited in footnote 12) at 
paragraph 48. 
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SPAIN V COUNCIL 
solution should be sought instead of resort­
ing to the indirect means of a quota 
exchange in order to avoid an overall 
increase in the catch quotas. 17 
49. Although it cannot be denied that the 
accession of those two countries to the 
Community involved difficulties, that can­
not justify the Council's conduct. The 
Council manifestly increased the TAC and 
redistributed it by allowing for a quota 
allocated to Portugal for the first time in a 
zone in which Portugal had no fishing 
interests, without observing the principle of 
relative stability laid down in the Act of 
Accession. 
50. The reference by the Council and the 
Commission to Spain's having already 
participated in such exchange possibilities 
itself cannot alter that conclusion in any 
way. In particular, it was not possible to 
show that Spain exchanged fishing oppor­
tunities with another country to its own 
advantage in similar circumstances. 
Although the examples cited certainly con­
cerned different stocks and different fishing 
zones, they did not involve three countries, 
which is the distinctive feature of this case. 
Previous exchanges were characterised 
either by the fact that one Member State 
carried out an exchange between two 
quotas to which it was itself entitled or by 
the fact that two Member States exchanged 
their quotas in their traditional fishing 
grounds without harming any third party. 
In the present case, however, the exchange 
was carried out only because an increase in 
the catch quotas overall would otherwise 
have been necessary, which would probably 
have led to the stock being jeopardised and 
would therefore not have been possible. 
The accusation that Spain's action is incon­
sistent with its previous actions {venire 
contra factum proprium) is therefore not 
founded. 
51. It follows from all the foregoing that 
the Council regulations contested by Spain 
were adopted in breach of the principle of 
relative stability laid down in Regulation 
No 3760/92. The Kingdom of Spain's 
action is therefore well founded. 
D — Costs 
52. In accordance with Article 69(2) of the 
Rules of Procedure, the Council as the 
unsuccessful party must be ordered to pay 
the costs if they have been applied for in the 
successful party's pleadings. Pursuant to 
Article 69(4) the Commission must bear it 
own costs. 
17 — Spain firmly expressed its concerns at the time of the 
adoption of the provisions at issue. 
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OPINION OF MR ALBER — CASE C-179/95 
E — Conclusion 
53. I therefore propose that the Court: 
(1) annul the final sentence of point 1.1(i) of Annex IV to Council Regulation 
(EC) No 685/95 of 27 March 1995 on the management of the fishing effort 
relating to certain Community fishing areas and resources; 
(2) annul the fifth heading, on anchovies, in Annex I to Council Regulation (EC) 
No 746/95 of 31 March 1995 amending Regulation (EC) No 3362/94 fixing, 
for certain fish stocks and groups of fish stocks, the total allowable catches 
for 1995 and certain conditions under which they may be fished; 
(3) order the Council to pay the costs and the Commission to bear its own costs. 
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