Judgment — ECLI:EU:T:2007:121
Date: 2007-05-03
Language of the case: Spanish
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Fisheries policy
Concepts: Community rules;General
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Spain

summary of the pleas in law on which the application is based. That provision is set out in identical terms in Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, and the two provisions simply repeat a requirement in Article 21 of the Statute of the Court of Justice which is applicable to actions brought before the Court of Justice and to those brought before the Court of First Instance alike (Case C‑214/05 P Rossi v OHIM [2006] ECR I‑7057, paragraph 36). 89 It follows from the provisions cited above that the basic factual and legal particulars on which the case is based must be indicated coherently and intelligibly in the application itself and must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application (Case C‑178/00 Italy v Commission [2003] ECR I‑303, paragraph 6, and judgment of 14 October 2004 in Case C‑55/03 Commission v Spain, not published in the ECR, paragraph 23). Simply pleading the principle of Community law whose infringement is alleged, without stating the legal and factual particulars on which that allegation is based, does not satisfy that requirement (see, to that effect, Case C‑199/03 Ireland v Commission [2005] ECR I‑8027, paragraph 51). 90 In this case, the Kingdom of Spain simply stated in its originating application that setting the date on which the contested decision took effect on 1 January 2003 constituted an infringement of the principle of the protection of legitimate expectations, since it could have entailed harm to the parties concerned, but does not indicate the factual and legal particulars to identify the anticipated damage or the parties concerned. In those circumstances, as the Commission rightly observes, this plea does not satisfy the requirements of the provisions cited above in the Rules of Procedure of the Court of Justice and the Court of First Instance and must be rejected as inadmissible. 91 In any event, the arguments put forward by the Kingdom of Spain in its reply in support of the admissibility of this plea, according to which the damage suffered by the parties concerned arises from the introduction of a new limit to the Member States’ fishing fleets in the contested regulation which is not provided for in Regulation No 2371/2002, is simply a repetition of the arguments put forward in the second plea alleging the infringement of the principle of the hierarchy of norms. As already stated that plea is unfounded and must be rejected. 92 Furthermore, in so far as the entry/exit scheme for the fishing fleet, established by Article 13 of Regulation No 2371/2002, entered into force on 1 January 2003, the application of the contested regulation from that date cannot, contrary to the Kingdom of Spain’s submissions, infringe the alleged legitimate expectations of the parties concerned. 93 It follows from all of the foregoing that this plea must be rejected. The fifth plea: the contested regulation is arbitrary Arguments of the parties 94 The Kingdom of Spain submits that Article 6 of the contested regulation limits the withdrawals of vessels which may be taken into account to the period from 1 January 2000 to 31 December 2002 inclusive, by introducing a limit which does not appear in Regulation No 2371/2002. According to the Kingdom of Spain, the reference levels refer, like the MAGP, to 1997. Furthermore, it is apparent from the expression ‘is compensated by the previous withdrawal without public aid’, used in Article 13(1)(a) and (b) of Regulation No 2371/2002, that there is no temporal limit as regards the withdrawals which may be taken into account. Accordingly, the limit applied by the contested regulation is arbitrary. 95 The Kingdom of Spain takes the view that the reference levels applied to it by the contested regulation are inadmissible, since the Commission has inserted a new rule into that regulation which makes the reference level useless as a criterion for managing the fleet and penalises the Kingdom of Spain with a reduction of 240 000 GT, while substantial tonnage increases have been granted to the Netherlands, Ireland and the United Kingdom. 96 The approach adopted by the Commission arbitrarily disregards the legitimate interests of the Kingdom of Spain by confusing the concepts of the reference level and the real level of the fleet. The Commission’s wide discretion in the evaluation of complex economic situations does not release it from the obligation to comply with the Council’s and its own regulations, and does not justify either a restrictive interpretation of the rights that the Kingdom of Spain has acquired by achieving the fourth MAGP’s objectives or placing the Kingdom of Spain on the same footing as Member States who have failed to fulfil their obligations by according it the same treatment, with respect to withdrawals, which is degrading and unacceptable. 97 The Commission points out that Article 6 of the contested regulation constitutes an exception to Article 13 of Regulation No 2371/2002 which does not provide for transitional provisions and which in principle prohibits, from 1 January 2003, any entry of a vessel into the fleet which is not matched by a withdrawal of at least the same amount of capacity. Article 6 merely ensures the transition between the former entry/exit scheme and the new system by taking account of administrative authorisations for construction of vessels previously granted by a Member State. Thus, Article 6 safeguards the right of the holders of an authorisation granted between 1 January 2000 and 31 December 2002 to enter, without a prior withdrawal of the same amount of capacity, their new vessel into the fishing fleet of the Member State concerned. That provision thereby protects the legitimate expectations of ship owners who have an authorisation for construction. 98 Taking account of authorisations granted during a limited period is justified by the exceptional nature of Article 6 of the contested regulation. The Commission points out, in that connection, that in its original draft, that period was fixed at one year, that is from 1 January to 31 December 2002. However, as a result of the observations from various Member States, including the Kingdom of Spain, and information transmitted at the Commission’s request by the competent national authorities for fisheries, the Commission decided to extend the reference period from one to three years. 99 That three-year period satisfied the objective criteria, namely the time between the grant of administrative authorisation for construction and the entry of the vessel into the fishing fleet, estimated by the Commission on the basis of its experience, taking account of all the intermediate stages, such as the conclusion of the contract, construction and the launch of the vessel, to be approximately three years. Moreover, setting the beginning of the reference period at 1 January 2000 corresponded to the beginning of the multi‑annual plan relating to structural measures in the fishing sector approved for the period 2000-2006. 100 It follows that the Kingdom of Spain’s assertion that the beginning of the reference period for taking account of administrative authorisations granted before 1 January 2003 should date back to 1997 cannot be accepted. 101 The Commission takes the view that, by that assertion, the Kingdom of Spain seeks to extend an exception, provided for in cases in which a national administrative authorisation had previously been granted and which had not been followed up before 1 January 2003 by the actual entry of a new vessel into the fleet, to all the withdrawals from the fleet made since 1997. In any event, the Kingdom of Spain has claimed only that administrative authorisations for construction had been granted before 1 January 2000 in respect of vessels which had not yet entered into the fleet on 1 January 2003. 102 The Commission submits that, by that assertion, the Kingdom of Spain seeks to generalise the exceptional transitional provision in Article 6 of the contested regulation, contrary to Article 13 of Regulation No 2371/2002 and the obligations incumbent on the Commission at the time the implementing rules for that article were adopted. 103 The Commission recalls, furthermore, the wide discretion enjoyed by the Community legislature, according to the case-law, in circumstances which necessitate the evaluation of a complex economic situation, as is the case as far as the common agricultural and fisheries policies are concerned (Case C‑4/96 NIFPO and Northern Ireland Fishermen’s Federation [1998] ECR I‑681, paragraphs 41 and 42, and Case C‑120/99 Italy v Council [2001] ECR I‑7997, paragraph 44). The Commission takes the view that in this case the Kingdom of Spain has not produced the slightest evidence that it has manifestly exceeded the limits of that discretion. 104 Finally, the Commission states that the tonnage increases for the other Member States, relied on by the Kingdom of Spain, correspond to the revision of the objectives of the fourth MAGP, requested by those States before 31 December 2002 and in respect of which no decision had yet been adopted on 1 January 2003. The Kingdom of Spain did not make such a request. Findings of the Court 105 In regard to the common agricultural policy which, by virtue of Article 32(1) EC, also includes fisheries, the case-law recognises the Community institutions as having a discretionary power which reflects the responsibilities which the Treaty imposes on them (Case 265/85 Van den Bergh en Jurgens v Commission [1987] ECR 1155, paragraph 31; Case C‑256/90 Mignini [1992] ECR I‑2651, paragraph 16, and NIFPO and Northern Ireland Fishermen’s Federation, paragraph 103 above, paragraph 57). 106 However, the case-law also recognises that if the examination of the provisions of a measure show a difference in treatment which is arbitrary, that is devoid of adequate justification and not based on objective criteria (Case 106/81 Kind v EEC [1982] ECR 2885, paragraph 22, Case C‑370/88 Marshall [1990] ECR I‑4071, paragraph 24, and Case T‑52/99 T. Port v Commission [2001] ECR II‑981, paragraph 82), that measure must be annulled on the ground that it infringes the prohibition on discrimination referred to in the second subparagraph of Article 34(2), which requires that comparable situations are not treated in a different manner unless the difference in treatment is objectively justified (NIFPO and Northern Ireland Fishermen’s Federation, paragraph 103 above, paragraph 58, and Case C‑280/93 Germany v Council [1994] ECR I‑4973, paragraph 67). 107 Therefore, it is necessary to determine whether the provision in Article 6 of the contested regulation reveals an arbitrary difference in treatment. In that connection, it must be observed that that provision is an exception to the rule laid down in Article 13 of Regulation No 2371/2002 which requires account to be taken, for the purposes of the compensation scheme of entries and exits, of the real capacity of the fishing fleet of a Member State existing on 1 January 2003. Article 6 of the contested regulation, together with Annex II thereof laying down the rules applicable to the calculation of fishing capacity in terms of tonnage (GT03) and power (KW03) on 1 January 2003, has the result that fishing vessels entering into the fleet after that date are treated as already forming part of the fleet at that date, where the conditions laid down by Article 6, relating to the existence of an administrative authorisation for construction held by the Member State concerned between 1 January 2000 and 31 December 2002 and compliance with a maximum period of three years between the date of that decision and the entry of the vessel into the fleet, are satisfied. 108 As it is clear from the eighth recital in the preamble to the contested regulation and the explanations provided by the Commission, that exception was introduced for the purposes of the transition between the old entry/exit scheme and the new system established by Regulation No 2371/2002. More specifically, by the exception in question, the Commission sought to ensure the protection of the legitimate expectations of ship owners who held authorisations for construction of a fishing vessel in the national entry/exit scheme established and notified to the Commission in accordance with Article 6 of Decision 97/413, but whose vessel was unable to enter into the fishing fleet of the Member State concerned before 1 January 2003. Taking account of the lack of transitional provisions to regulate that situation in Regulation No 2371/2002, the entry of a vessel into the fishing fleet of the Member State concerned after 1 January 2003 would have been possible without that exception only if it had been accompanied by the withdrawal of another vessel of at least equal capacity. 109 Since such a condition was not foreseeable at the time the authorisation was granted, its subsequent imposition would have infringed the legitimate expectations of the holders of an administrative authorisation who had invested substantial sums in the construction of a fishing vessel whose entry into the fishing fleet would have become problematic. Therefore, Article 6 of the contested regulation enabled the entry into the fishing fleet of such a vessel after 1 January 2003, subject, however, to the condition that the administrative authorisation for construction was issued in the reference period between 1 January 2000 and 31 December 2002, and that the vessel was registered at the latest three years after the date of the administrative decision authorising its construction. The reference period of one year (from 1 January to 31 December 2002) originally proposed by the Commission was extended to three years, at the request of a number of Member States to coincide with the beginning of the MAGP for the period 2000-2006. Furthermore, the imposition of a maximum period of three years between the date on which the decision granting the administrative authorisation for construction was made and the entry of the new vessel into the fishing fleet corresponds, as the Commission argued, to the normal duration for the construction of such a vessel. 110 Taking account of the foregoing, the exception granted by Article 6 of the contested regulation cannot be regarded as being arbitrary. On the contrary, it is based on objective criteria and is fully justified by the need to protect the legitimate expectations of holders of authorisations for the construction of fishing vessels issued before the entry into force of Regulation No 2371/2002. 111 The Kingdom of Spain’s argument cannot cast doubt on that finding. It must be observed, in that connection, that the scope of the argument relating to this plea, set out in the Kingdom of Spain’s pleadings, is difficult to grasp and the Kingdom of Spain appears to repeat the assertions, which are unfounded, put forward in support of the second plea. More specifically, the Kingdom of Spain submitted in its pleadings that the contested regulation allowed account to be taken of withdrawals made during the period from 1 January 2000 and 31 December 2002, although that period should have dated back to 1997. In that connection, it must be stated, first, that taking account of withdrawals made in the abovementioned period is authorised by the contested regulation only in so far as those withdrawals led to the grant of corresponding administrative authorisations for construction and that the vessels to be built had not yet entered into the fishing fleet on 1 January 2003. 112 Furthermore, the extension of the reference period to 1997 would be effective only if at the same time the period between the grant of the authorisation and registration of the vessel provided for in Article 6 of the contested regulation was set at a minimum of six years instead of three. At first sight such a period for the construction of a fishing vessel appears to be excessive and does not correspond to the normal period for the construction of such a vessel. Furthermore, in its pleadings, the Kingdom of Spain did not deal at all with the question of the construction time of a fishing vessel and has not therefore stated the reasons why it would be necessary to set a longer period for construction. 113 At the hearing the Kingdom of Spain stated that setting a five-year period for construction was necessary for Spain, on the grounds that, first, the Spanish legislation applicable before the entry into force of Regulation No 2371/2002 allowed holders of authorisations for construction a period of five years within which to construct a new vessel and have it entered into the Spanish fishing fleet and, second, the majority of applications for construction of such vessels in Spain and the limited number of shipyards available meant that, in Spain, the average period for construction of vessels of that type was in fact five years. 114 The Commission replied that it had not received any objective and precise information from Member States requesting an extension of the initial construction period, enabling the exact length of the extension to be granted to be determined. In those circumstances, the Commission reached the conclusion, in the light of its experts’ estimates, that a period of three years was amply sufficient for the construction of a vessel of that type. 115 The Kingdom of Spain contests those assertions, arguing that its delegation expressed its views on that issue during the Committee meetings preceding the adoption of the contested regulation. It is clear, from the minutes of the Committee meeting of 16 July 2003, that the Kingdom of Spain did in fact indicate at the meeting that the period proposed by the Commission was too short and, therefore, that the beginning of that period should be backdated to 1998. However, as the Commission submitted, without being contradicted, the Kingdom of Spain has not put forward either the arguments relied on at the hearing or any other reasoning in support of its position. 116 In those circumstances, the Court finds that the Kingdom of Spain’s arguments, put forward for the first time at the hearing, are out of time and, therefore, inadmissible. In any event, those arguments are not capable either of calling into question the reasonable and non-arbitrary nature of the three-year period laid down in Article 6 of the contested regulation, or of establishing that the duration of that period is the result of a manifest error of assessment by the Commission. Although the Commission was obliged to set the length of the period in question on the basis of objective criteria and in a non‑arbitrary manner, it did not have any obligation to approve all of the Member States’ proposals relating to it which, moreover, would have been impossible given the disparate nature of the various national laws in that field. 117 Finally, as regards the increases in the reference levels granted by the Commission to other Member States but not to Spain, it must be stated that they are not such as to establish that Spain was treated in an arbitrary and discriminatory manner. In so far as the Kingdom of Spain itself states that the capacity of its fishing fleet on 1 January 2003 was less than its reference level, an increase in the latter would have been of no benefit to it and would, therefore, have been pointless, since, as stated in the examination of the second plea (see, in particular, paragraphs 69 to 76 above), the compensation scheme for entries and exits established by Regulation No 2371/2002 requires that the capacity of a Member State’s fishing fleet exceed its level on 1 January 2003. 118 It is clear from all of the foregoing considerations that this plea must be rejected as unfounded, together with the action in its entirety. Costs 119 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission applied for costs and the Kingdom of Spain has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby: 1. Dismisses the action; 2. Orders the Kingdom of Spain to pay the costs. Vilaras Dehousse Šváby Delivered in open court in Luxembourg on 3 May 2007. E. Coulon M. Vilaras Registrar President * Language of the case: Spanish.