Opinion of the Advocate General — ECLI:EU:C:2010:500
Date: 2010-09-07
Language of the case: Maltese
Subject matter: Agriculture and Fisheries;Fisheries policy;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Malta

Summary of the Judgment 1. Fisheries – Conservation of the resources of the sea – Power to adopt emergency conservation measures conferred on the Commission by Article 7 of Regulation No 2371/2002 – No obligation to obtain the observations of operators likely to be affected (Art. 288 TFEU; Council Regulation No 2371/2002, Art. 7(1)) 2. Fisheries – Conservation of the resources of the sea – Measures to address the threat of collapse of the stock of Eastern Atlantic and Mediterranean bluefin tuna – Difference in treatment between Spain and other Member States concerning the date of entry into force of those measures (Council Regulation No 2371/2002, Art. 7(1); Commission Regulation No 530/2008) 1. The validity of Article 7(2) of the Basic Regulation on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy as regards the principle audi alteram partem and the principle of effective judicial protection is not affected by the fact that that regulation fails to provide, during the process of adopting the emergency measures provided for in Article 7(1), for obtaining the observations of operators likely to be affected by those measures. Article 7(1) of the Basic Regulation empowers the Commission to adopt measures to put an end to serious threats to the conservation of living aquatic resources, or to the marine eco-system where such threats result from fishing activities. Consequently, the measures adopted affect economic operators in the fisheries sector in a given zone and in respect of a given living species. An emergency measure is not therefore adopted depending on the interests of economic operators but solely in order to conserve living aquatic resources and the marine eco-system. Regulations adopted on the basis of Article 7(1) apply therefore to objectively determined situations and produce legal effects with respect to categories of persons envisaged in general and in the abstract. They are therefore regarded as regulations within the meaning of Article 288 TFEU and, as such, are not covered by Article 41 of the Charter of Fundamental Rights, which proclaims, in particular, the right for every person to be heard before any individual measure which would affect him or her adversely is taken. (see paras 49-56) 2. Regulation (EC) No 530/2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45°W, and in the Mediterranean Sea, adopted on the basis of Article 7(1) of Basic Regulation No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, is invalid in so far as, since its purpose is to lay down measures to address the threat of collapse of the stock of Eastern Atlantic and Mediterranean bluefin tuna, it set the date for the entry into force of those measures as 16 June 2008 but deferred that date to 23 June 2008 in respect of purse seiners flying the flag of or registered in Spain, thus creating a difference in treatment on grounds of nationality between them and seiners flying the flag of or registered in Malta, Greece, France, Italy and Cyprus, without that difference being objectively justified. (see para. 113, operative part 3)