Opinion of the Advocate General — ECLI:EU:C:2006:459
Date: 2006-07-13
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Fisheries policy
Procedure: Action for failure to fulfil obligations - unfounded
Origin: United Kingdom;Netherlands

Summary of the Judgment 1. Fisheries – Common structural policy – Community system of fishing licences (Council Regulations No 3690/93, Art. 5, and No 3699/93, Art. 8) 2. Actions for failure to fulfil obligations – Pre-litigation procedure – Requirement on the Member State to put forward all the arguments in its defence – None (Art. 226 EC) 3. Fisheries – Common structural policy – Community system of fishing licences (Council Regulations No 3690/93, Art. 5, and No 3699/93, Art. 8) 1. The phrase ‘definitive withdrawal from fishing activities’ is defined neither by Article 5 of Regulation No 3690/93 establishing a Community system laying down rules for the minimum information to be contained in fishing licences nor by that regulation as a whole. It is, however, defined by Regulation No 3699/93 laying down the criteria and arrangements regarding Community structural assistance in the fisheries and aquaculture sector and the processing and marketing of its products, and more precisely in Article 8(2) thereof, where it is stated that measures to stop vessels’ fishing activities permanently may include, inter alia, permanent transfer to a non-Member State, provided such transfer is not likely to infringe international law or affect the conservation and management of marine resources. Although the purpose of those two regulations is different, there is nothing to indicate that the said definition applies exclusively to Regulation No 3699/93 and that it cannot be used in the context of other instruments of secondary legislation relating to the sphere of fishing policy. Moreover, Regulation No 3699/93, which defines that concept, was adopted after Regulation No 3690/93, the Community legislature having thus knowingly chosen the same expression as that already used in Regulation No 3690/93. Accordingly, there is nothing to preclude that definition being used in the context of the implementation of Article 5 of Regulation No 3690/93 regarding the temporary or definitive suspension of fishing licences. (see paras 34, 36-38) 2. The proper conduct of the pre-litigation procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter. Thus, once the subject-matter has been defined, the Member State has the right to raise all the pleas available to it in order to defend itself. Moreover, there is no rule of procedure which requires the Member State concerned to put forward, during the pre-litigation procedure, all the arguments in its defence, in an application based on Article 226 EC. (see para. 49) 3. It does not follow from Article 5 of Regulation No 3690/93 establishing a Community system laying down rules for the minimum information to be contained in fishing licences that, where vessels have been permanently transferred to a non-Member State, the Member State must refrain from utilising the fishing capacity made available by that transfer in order to issue new licences. The wording of that article does not prohibit that use as such, but merely requires the flag Member State to withdraw the fishing licences relating to vessels which are subject to definitive withdrawal from fishing activities. Article 8 of Regulation No 3699/93, laying down the criteria and arrangements regarding Community structural assistance in the fisheries and aquaculture sector and the processing and marketing of its products, lays down, inter alia, what the measures to stop vessels’ fishing activities permanently may include and requires vessels deleted from the register to be excluded from fishing in Community waters. It does not, however, follow from that provision that the fishing capacity made available in the national register of fishing vessels by the permanent transfer of vessels to a non-Member State should not be used to issue new fishing licences. (see paras 50-52)