Opinion of the Advocate General — ECLI:EU:C:2008:58
Date: 2008-01-31
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Fisheries policy
Procedure: Action for annulment - unfounded
Origin: Spain

summary of the plea and which does not include a statement of reasons must be declared inadmissible. (31) 70. The ‘essential arguments in law’ must therefore be mentioned in the application and may thus, where appropriate, be developed in the reply. (32) 71. Moreover, the prohibition on introducing new pleas in law in the course of proceedings prevents an applicant from raising a plea of illegality for the first time in his reply, (33) unless it is based on matters of law or of fact which come to light in the course of the procedure, in accordance with the first subparagraph of Article 42(2) of the Rules of Procedure of the Court. (34) 72. It should also be pointed out that the Court has decided that although that provision allows an applicant, in exceptional circumstances, to introduce new pleas in law in support of the form of order sought in the application, it does not in any way provide for the possibility of an applicant’s changing the form of order sought. (35) 73. In the light of those requirements, the Community judicature has already accepted that a plea of illegality may be raised implicitly. 74. It should be pointed out that such recognition in no way detracts from the obligation to state reasons for a plea of illegality once the plea appears to be clearly evident from the arguments put forward in the application, even if the applicant has not expressly indicated that it is raising a plea of illegality under Article 241 EC. (36) 75. In short, the Community Courts can accept an implicit plea of illegality only if the legal arguments on which it is based appear in the application in a clear and precise manner so that the Court can be certain that a plea of illegality under Article 241 EC has been raised before it. (37) Where that condition is fulfilled, the defendant is in a position to ensure his defence in regard to the incidental challenge. (38) 76. Applying those requirements to the present case, it is clear that, as the Council and the Commission substantially accept, the two main grounds relied upon by the Kingdom of Spain in its application and the arguments on which they are based are intended, in the first place, to challenge, in a precise manner, the legality of Articles 3, 4 and 6 of Regulation No 1954/2003 and then, secondly, to obtain the annulment of Regulation No 1415/2004 in so far as it implements Articles 3 and 6 of the former regulation. 77. In my view, therefore, the incidental challenge to Articles 3 and 6 of Regulation No 1954/2003, implemented by Regulation No 1415/2004, is certainly present in the Kingdom of Spain’s application, which contains clear and precise legal arguments to that effect. 78. It should also be noted that it is clear from the Council’s defence that the Council understood that the main thrust of the argument put forward by the Kingdom of Spain in its application was to challenge the legality of Articles 3 and 6 of Regulation No 1954/2003. (39) Both parties were thus certain that an implicit plea of illegality had been raised. 79. It follows that, even if the Kingdom of Spain did not, at the stage of the application, expressly indicate that it was raising a plea under Article 241 EC alleging the illegality of Articles 3 and 6 of Regulation No 1954/2003, the plea of illegality may be regarded as implicitly contained in the application. 80. In my opinion, that circumstance prevents the plea of illegality from being regarded as out of time and declared inadmissible on that ground. 81. Nor do I consider that its admissibility should be precluded by the fact that it is an incidental partial challenge to Regulation No 1954/2003. 82. With regard to the requirement that there should be a direct legal link between the measure being principally challenged and the one being incidentally challenged, I do not consider that an applicant can be criticised for establishing the existence of such a link by focusing its submissions in support of a plea of illegality on the precise provisions of the basic legislation which has been implemented by the implementing rules. 83. I would add that the principal reason underlying the case-law to the effect that partial annulment of a Community act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (40) – that is to say, the fact that the Community Courts may not rule ultra petita partem where the form of order sought is the partial annulment of a Community act and they find that the contested provisions cannot be severed from the remainder of the act – does not apply in the case of pleas of illegality. In the context of such a remedy, it is possible to claim only that the act incidentally contested is inapplicable, not that it should be annulled. 84. I do not therefore consider it appropriate to apply that case-law by analogy to the plea of illegality. 85. Finally, I consider that the fact that, in its reply, the Kingdom of Spain formally raised a plea of illegality under Article 241 EC in regard to Regulation No 1954/2003 does not signify that it is challenging all the provisions of that regulation. Consistent with the arguments put forward in its application, its submissions remain focused on Articles 3 and 6 of the regulation. 86. With those circumstances in mind, I regard as admissible the Kingdom of Spain’s claim, in support of the present action for annulment, that Articles 3 and 6 of Regulation No 1954/2003 are inapplicable. 87. In my opinion, the present action must consequently be regarded as based on a single plea in law, namely, the plea of illegality in regard to Articles 3 and 6 of Regulation No 1954/2003, in support of which the Kingdom of Spain has put forward two principal submissions, namely, infringement of the principle of non-discrimination on grounds of nationality, and misuse of powers. B – Whether the plea of illegality raised by the Kingdom of Spain is well founded 88. As I pointed out earlier, the Kingdom of Spain puts forward in support of its claims of infringement of the principle of non-discrimination on grounds of nationality and misuse of powers the same arguments as it put forward in Spain v Council. 89. More precisely, the Kingdom of Spain claims, in support of the submission alleging infringement of the principle of non-discrimination on grounds of nationality: – first, that the reference period 1998-2002 used in Regulation No 1954/2003 as the basis for calculating the fishing effort corresponds to a period during which the Kingdom of Spain, unlike the other Member States, was subject to a restrictive regime by reason of its accession to the European Community; and, – second, that the delimitation of the biologically sensitive area as defined in Article 6(1) of Regulation No 1954/2003, where a specific fishing effort regime applies, coincides with an earlier area known as the ‘Irish Box’, in which the Kingdom of Spain was also subject to a restrictive regime. 90. More generally, the Kingdom of Spain argues that the transitional arrangements to which it was subject by reason of its accession to the Community expired on 31 December 2002 and that the new regulation should not have taken 1998-2002 as the reference period. By using that period in Regulation No 1954/2003 for purposes of assessing fishing effort, the Council continued the discrimination which existed in the legislation preceding that regulation. 91. The Kingdom of Spain also maintains that the Council failed to take into account the specific situation of the Spanish fleet under the rules of the Act of Accession, which constitutes an infringement of the principle of non-discrimination on grounds of nationality. 92. With regard to the second principal submission, the Kingdom of Spain claims that the Council misused its powers in adopting Article 6 of Regulation No 1954/2003, since the real objective of delimiting the biologically sensitive area was not to protect juvenile hake but to maintain the restrictions already applying to the Spanish fleet in the Irish Box. 93. The Kingdom of Spain argues that, if the objective sought had really been to protect juvenile hake, the same measures as those provided for in Article 6 of Regulation No 1954/2003 should have been applied to other areas of the western waters. It also maintains that the adoption of this type of technical measure is governed by Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms. (41) 94. Those two submissions were considered in detail by Advocate General Léger in his Opinion in Spain v Council. 95. I agree with his analysis and I would refer the Court to points 41 to 81 of that Opinion. 96. I will merely note the following points. 97. With regard to the first submission, it is objectively justified in my view, in the light of the aim of conserving fisheries resources, to make provision in Regulation No 1954/2003, in respect of all Member States, for a regime restricting the fishing effort on the basis of the effort exerted by each Member State, in the fisheries concerned, during a recent, earlier period between 1998 to 2002. The general system for managing fishing effort provided for in Article 3 of Regulation No 1954/2003 cannot therefore be classed as discriminatory. 98. Regarding the biologically sensitive area defined in Article 6(1) of Regulation No 1954/2003, it is clear from the documents in the case that that area overlaps with the Irish Box only to a limited extent, since the biologically sensitive area covers less than half of the Irish Box. (42) In those circumstances, it is hard to maintain that the system of restrictions applying to the Kingdom of Spain within the Irish Box under Regulation No 685/95 during the period 1998 to 2002 was to be extended, to the detriment of that Member State, by Article 6(1) of Regulation No 1954/2003. Moreover, the method for assessing fishing effort in the biologically sensitive area referred to in that article is based also on an objective criterion – the fishing effort actually exerted by vessels equal to or more than 10 metres in length overall, as an annual average of the period 1998 to 2002 – which seems to me justified in the light of the objective of restricting fishing effort in an area of high concentration of juvenile hake. 99. Consequently, the first principal submission must be dismissed. 100. With regard to the second principal submission, and having regard to the Court’s case-law, (43) I do not think that the adoption of Article 6 of Regulation No 1954/2003 constitutes a misuse of powers on the part of the Council. 101. On one hand, the Kingdom of Spain does not show that the specific regime for managing fishing effort which is applied to the biologically sensitive area was adopted mainly for a purpose other than that of promoting the protection of juvenile hake. 102. On the other hand, I consider that neither the fact that technical measures for the protection of juveniles of marine organisms may also fall within another regulation nor the fact that there may be other biologically sensitive areas shows that there has been a misuse of powers on the part of the Council. 103. It follows that the second principal submission put forward by the Kingdom of Spain in support of its plea of illegality should also, in my view, be rejected. 104. Since none of the submissions put forward in support of the plea of illegality have been accepted, that plea – the only plea in law on which the application for annulment of Articles 1 to 6 of Regulation No 1415/2004 is based – should be rejected. 105. It follows from all the foregoing that the present action should be dismissed as unfounded. IV – Conclusion 106. In the light of the above considerations, I suggest that the Court should: ‑ declare admissible the plea of illegality raised by the Kingdom of Spain in regard to Articles 3 and 6 of Council Regulation (EC) No 1954/2003 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 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95; ‑ dismiss the action for annulment brought by the Kingdom of Spain; and ‑ order the Kingdom of Spain to pay the costs, pursuant to Article 69(2) of the Rules of Procedure of the Court, with the Commission of the European Communities bearing its own costs pursuant to Article 69(4) of those rules. 1 – Original language: French. 2 – OJ 2004 L 258, p. 1. 3 – OJ 2003 L 289, p. 1. 4 – Case C‑36/04, [2006] ECR I‑2981. 5 – Spain v Council, paragraph 21. 6 – OJ 2002 L 358, p. 59. 7 – Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985, L 302, p. 23, in particular, p. 69 et seq.; ‘the Act of Accession’). 8 – Regulation of 27 March 1995 (OJ 1995 L 71, p. 5). 9 – Regulation of 15 June 1995 (OJ 1995 L 199, p. 1), as amended by Council Regulation (EC) No 149/1999 of 19 January 1999 (OJ 1999 L 18, p. 3). 10 – OJ 2002 L 351, p. 6. 11 – The Kingdom of Spain refers, on that subject, to Case C‑135/93 Spain v Commission [1995] ECR I‑1651, paragraph 17. 12 – Under that provision, ‘[n]o new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure’. 13 – The Council refers to Case 52/83 Commission v France [1983] ECR 3707, paragraph 10; Case C‑188/92 TWD Textilwerke Deggendorf [1994] ECRI‑833, paragraph 13; and Case C‑239/99 Nachi Europe [2001] ECR I‑1197, paragraph 29. 14 – The Commission refers to Joined Cases T‑244/93 and T‑486/93 TWD v Commission [1995] ECR II‑2265, paragraph 103. 15 – The Commission mentions Case 14/59 [1959] ECR 215. 16 – Case 92/78 [1979] ECR 777. 17 – Paragraph 39. 18 – According to the expression used by L. Coutron, La contestation incidente des actes de l’Union européenne, a thesis defended on 10 December 2005 at the University of Montpellier I. 19 – See J. Molinier, ‘Exception d’illégalité’, Jurisclasseur Europe, 2007, fascicule 350, p. 7, point 22. 20 – See L. Coutron, op. cit., pp. 113 and 383. 21 – That time bar was first raised against a negligent applicant in the context of a reference for a preliminary ruling on validity (TWD Textilwerke Deggendorf, paragraphs 23 to 25). The following year, the Court of First Instance transposed that reasoning to the plea of illegality (TWD v Commission, paragraph 103). 22 – See, in particular, Spain v Commission (paragraph 17). 23 – Case 226/87 Commission v Greece [1988] ECR 3611, paragraph 16). See also, to that effect, Joined Cases 6/69 and 11/69 Commission v France 1969] ECR 523, paragraphs 11 to 13. 24 – See, to that effect, Case C‑241/95 Accrington Beef and Others [1996] ECR I‑6699, paragraphs 15 and 16). 25 – See L. Coutron, op. cit., p. 393. 26 – See the Opinion of Advocate General Slynn in Case 181/85 France v Commission [1987] ECR 689. In his view, ‘[d]espite the “privileged” position of Member States under Article [230 EC], I consider that “any party” in Article 184 means “any party” and not “any party other than a Member State”’ (p. 703). 27 – To adopt the expression used by Advocate General Mancini at p. 5343 of his Opinion in Case 204/86 Greece v Council [1988] ECR 5323. 28 – See, in particular, p. 414 of the Opinion of Advocate General Roemer in Case 32/65 Italy v Council and Commission [1966] ECR 389; p. 703 of the Opinion of Advocate General Sir Gordon Slynn in France v Commission; and pp. 5343 to 5345 of the Opinion of Advocate General Mancini in Greece v Council. See also the same line of reasoning in paragraphs 36 to 54 of the Opinion of Advocate General Mengozzi in Case C‑91/05 Commission v Council, still pending before the Court. 29 – Several judgments only implicitly recognise the right of privileged applicants to challenge a regulation indirectly in the course of an action for annulment (see Italy v Council and Commission, France v Commission and Greece v Council). More recently, the Court has accepted more openly that a privileged applicant may contest a regulation indirectly (see, in particular, Case C‑11/00 Commission v ECB [2003] ECR I‑7147, paragraphs 74 to 78, and Case C‑110/03 Belgium v Commission [2005] ECR I‑2801, paragraphs 76 to 81). 30 – See, on that subject, L. Coutron, op. cit., pp. 102 to 104. 31 – See, in particular, Case T‑333/99 X v ECB [2001] ECR II‑3021, paragraphs 115 to 117, and Case T‑349/03 Corsica Ferries France v Commission [2005] ECR II‑2197, paragraphs 179 and 180. See also Case F‑59/05 De Smedt v Commission [2006] ECR‑SC I‑A‑0 and II‑0, paragraph 77). 32 – See X v ECB, paragraphs 115 et seq. 33 – The Court has also decided that the subject-matter of the dispute is to be stated in the application and a plea of illegality is inadmissible at the stage of the reply (Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 37). See also Joined Cases T‑134/03 and T‑135/03 Common Market Fertilizers v Commission [2005] ECR II‑3923, paragraph 51, confirmed in Case C‑443/05 P Common Market Fertilizers v Commission [2007] ECR I‑0000, paragraphs 106 to 110). 34 – See, in particular, Case C‑135/92 Fiskano v Commission [1994] ECR I‑2885, paragraphs 31 to 33). 35 – Case 125/78 GEMA v Commission [1979] ECR 3173, paragraph 26). 36 – Case T‑262/94 Baiwir v Commission [1996] ECR‑SC I‑A‑257 and II‑739, paragraph 37). In the view of the Court of First Instance, ‘the case-law makes it possible to consider that a plea of illegality may be raised implicitly in so far as it is relatively clear from the application that the applicant is in fact raising such a plea’. 37 – See, to that effect, Case T‑171/00 Spruyt v Commission [2001] ECR‑SC I‑A‑187 and II‑855, paragraph 53, and Case T‑59/01 Nardone v Commission [2003] ECR I‑A‑55 and II‑323, paragraph 27. See also L. Coutron, op. cit., p. 103. For another example of the implicit plea of illegality, see Case T‑173/04 Carius v Commission [2006] ECR‑SC I‑A‑0 and II‑0, paragraphs 44 to 60). 38 – Thus, in Spruyt v Commission the Court of First Instance ascertained whether the Commission had been able to defend its position in regard to the implicit plea of illegality during the written procedure (paragraphs 54 to 61). 39 – See paragraph 34 of this Opinion. 40 – See, in particular, Spain v Council (paragraph 9 and the case-law cited therein). 41 – OJ 1998 L 125, p. 1. 42 – See charts annexed to the Council rejoinder and the Commission’s statement in intervention in Spain v Council. 43 – See, in particular, Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 24, and Case C‑110/97 Netherlands v Council [2001] ECR I‑8763, paragraph 137. According to that case-law, ‘a measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case’.