62004TO0037_EN
Parties
Grounds
Operative part
Parties
In Case T-37/04 R,
The Autonomous Region of the Azores,
represented by M. Renouf, S. Crosby and C. Bryant, solicitors, and H. Mercer, barrister,
applicant,
v
Council of the European Union,
represented by J. Monteiro and F. Florindo-Gijón, acting as Agents,
defendant,
supported by
Commission of the European Communities,
represented by T. van Rijn and B. Doherty, acting as Agents, with an address for service in Luxembourg, and
Kingdom of Spain,
represented by N. Díaz Abad and E. Braquehais Conesa, acting as Agents, with an address for service in Luxembourg,
APPLICATION for partial suspension 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 (EC) No 2847/93 and repealing Regulations (EC) No 685/95 and EC No 2027/95 (OJ 2003 L 289, p. 1), in so far as it adversely affects Azorean waters and, in particular, Articles 3, 5(1), 11, 13(b) and 15 thereof and the Annex thereto, and/or any other interim measures deemed to be appropriate,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES,
makes the following
Order
Grounds
Relevant legislation
1. The legislative framework relevant to the present demand for interim measures is that pertaining to the Community’s Common Fisheries Policy (hereinafter referred to as the ‘CFP’), in particular, with regard to a zone within Portuguese jurisdiction of up to 200 nautical miles (‘nm’) from the baseline of the Azores (hereinafter referred to as ‘Azorean waters’), corresponding to the exclusive economic zone of the Azores. The legislative framework is complex with a large number of secondary legislative acts regulating fishing activities in that area.
1. Rules limiting access to waters under Portuguese jurisdiction, in particular Azorean waters
2. Since the accession of the Kingdom of Spain and of the Portuguese Republic to the Community on 1 January 1986, provisions included in the Treaty concerning the Accession of the Kingdom of Spain and the Portuguese Republic to the European Economic Community and to the European Atomic Energy Community (OJ 1985 L 302, p. 9) (hereinafter referred to as the ‘Act of Accession’) and subsequent secondary legislation have governed access of foreign vessels into waters under the jurisdiction of the Portuguese Republic, including Azorean waters.
3. In particular, Articles 154 to 166 and 346 to 363 of the Act of Accession contained transitional provisions in respect of fisheries in Spain and Portugal. Pursuant to Articles 162 and 350 of the Act of Accession and Article 43 of the EC Treaty (now Article 37 EC), the Council adopted an adjusted transitional regime in the form of Council Regulation (EC) No 1275/94 of 30 May 1994 on adjustments to the arrangements in the fisheries chapters of the Act of Accession of Spain and Portugal (OJ 1994 L 140, p. 1). This Regulation laid down the institutional framework for the Council to adopt further measures. Article 353 of the Act of Accession provided that the adjusted transitional regime was to remain in force until 31 December 2002.
4. Pursuant to Regulation No 1275/94, the Council adopted two Regulations: 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 (OJ 1995 L 71, p. 5) and Council Regulation (EC) No 2027/95 of 15 June 1995 establishing a system for the management of fishing effort relating to certain Community fishing areas and resources (OJ 1995 L 199, p. 1) (hereinafter, together, referred to as the ‘1995 Regulations’).
5. The 1995 Regulations govern access to waters under Portuguese jurisdiction, including Azorean waters. They lay down, inter alia, a fishing effort limitation regime which specifically excludes access of foreign vessels to Azorean waters.
6. Regulation No 685/95 includes provisions excluding access by Spanish vessels fishing for tuna in Azorean waters (Article 8 and paragraph 3 of Annex III).
7. Regulation No 2027/95 sets out, in Annex I thereto, the maximum annual fishing effort for each Member State and for each fishery. Pursuant to the limits set out in that Annex, Portugal is the only Member State entitled to fish for deep-sea species in Azorean waters. In addition, the Annex allocates a zero quota for fishing with towed gear for demersal and deep-sea species in Azorean waters, thus, in essence, prohibiting the use of towed gear in Azorean waters.
2. Other relevant regulations applicable to Azorean waters
8. A number of other regulations applicable, inter alia, to Azorean waters govern relevant matters including total allowable catches (hereinafter referred to as ‘TACs’), fishing effort for deep-sea species, and use of permissible gear.
The Base Regulation
9. Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the CFP (OJ 2002 L 358, p. 59) is the current ‘Base Regulation’ applicable to the current proceedings.
10. Articles 1 and 2 of the Base Regulation respectively provide that the scope of the CFP is to ‘cover conservation, management and exploitation of living aquatic resources …’ and that the CFP shall ‘ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions’. To achieve those objectives, Article 4 of the Base Regulation provides that ‘the Council shall establish Community measures governing access to waters and resources and the sustainable pursuit of fishing activities’ and that such measures ‘shall be established taking into account available scientific, technical and economic advice …’. Measures adopted can target individual species or groups and can include measures ‘establishing targets’, ‘limiting catches’, ‘limiting fishing effort’ and ‘technical measures’ (e.g. on the structure of fishing gear) or specific measures to ‘reduce the impact of fishing activities on marine eco-systems and non target species’.
11. Articles 7 and 8 of the Base Regulation empower the Commission and Member States respectively to adopt emergency measures in cases of serious threat to the marine ecosystem or fish stock. Article 7 and Article 8 read:
‘Article 7
Commission emergency measures
1. If there is evidence of a serious threat to the conservation of living aquatic resources, or to the marine eco-system resulting from fishing activities and requiring immediate action, the Commission, at the substantiated request of a Member State or on its own initiative, may decide on emergency measures which shall last not more than six months. The Commission may take a new decision to extend the emergency measures for no more than six months.
…
Article 8
Member State emergency measures
1. If there is evidence of a serious and unforeseen threat to the conservation of living aquatic resources, or to the marine ecosystem resulting from fishing activities, in waters falling under the sovereignty or jurisdiction of a Member State where any undue delay would result in damage that would be difficult to repair, that Member State may take emergency measures, the duration of which shall not exceed three months.
…’
The 2002 Regulations on deep-sea fish stocks
12. A number of regulations provide for TACs and the limitation of fishing effort relative to deep-sea species.
13. Council Regulation (EC) No 2340/2002 of 16 December 2002 fixing for 2003 and 2004 the fishing opportunities for deep-sea fish stocks (OJ 2002 L 356, p. 1) sets out TACs and quotas for deep-sea fish stocks. In relation to Azorean waters, Annex I to the same Regulation sets specific limitations with regard to two deep-sea species: black scabbardfish and red seabream.
14. Council Regulation (EC) No 2347/2002 of 16 December 2002 establishing specific access requirements and associated conditions applicable to fishing for deep-sea stocks (OJ 2002 L 351, p. 6) (hereinafter, together with Regulation No 2340/2002, referred to as the ‘2002 Regulations’) lays down rules limiting fishing effort for a number of deep-sea species which are listed in Annex I to that Regulation (including relevant Azorean species such as orange roughy and alfonsino). The fishing effort is restricted in relation to those species so as not to exceed the aggregate power and volume of the years 1998, 1999 and 2000. Annex II to the Regulation applies to a different list of deep-sea species (including wreckfish, bluemouth, common mora and conger eel) for which vessels must keep detailed recorded information in order to allow for the monitoring of the situation of those species.
Regulation No 850/98 governing the use of fishing gear
15. The CFP includes measures prescribing requirements for and/or prohibiting the use of specific fishing gear. 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 (OJ 1998 L 125, p. 1) prescribes minimum mesh sizes for towed nets and applies, inter alia, in Azorean waters.
16. A Commission proposal for a Council regulation amending Regulation No 850/98 as regards the protection of deep-water coral reefs from the effects of trawling in certain areas of the Atlantic Ocean (COM (2004) 58) has been submitted to the Council for adoption (hereinafter referred to as the ‘Proposal on Trawling’).
17. The Proposal on Trawling proposes to impose a ban in Azorean waters on the use of bottom trawl gear or similar towed nets. The revised Article 30 of Regulation No 850/98 would read:
‘Vessels shall be prohibited from using any bottom trawl or similar towed nets operating in contact with the bottom of the sea in [inter alia Azorean waters]’.
Regulation No 2847/93 on control systems (VMS and hailing system)
18. Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the CFP (OJ 1993 L 261, p. 1), as last amended by Council Regulation (EC) No 806/2003 of 14 April 2003 adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (qualified majority) (OJ 2003 L 122, p. 1) (hereinafter referred to as ‘Regulation No 2847/93’), establishes a regime for the use of the so-called Vessel Monitoring System (hereinafter referred to as ‘VMS’) which obliges vessels to carry on board a functioning system allowing detection and identification of vessels by remote monitoring system.
19. Title II A of Regulation No 2847/93 was added by Council Regulation (EC) No 2870/95 of 8 December 1995 amending Regulation No 2847/93 (OJ 1995 L 301, p. 1). Title II A of Regulation No 2847/93 imposes additional reporting requirements on vessels fishing for demersal species (Title II A, Articles 19(a)3, 19b, 19c, 19d, and 19e(3)) which are known as the ‘hailing system’.
20. A number of other Regulations lay down additional rules relating to the use of the VMS. Regulation No 2347/2002 lays down specific rules for the use of VMS by vessels engaging in deep-sea fishing activities. Regulation No 2371/2002 extends the requirement for VMS to vessels longer than 18 metres or, from 2005, 15 metres in length. Commission Regulation (EC) No 2244/2003 of 18 December 2003 laying down detailed provisions regarding satellite-based Vessel Monitoring Systems (OJ 2003 L 333, p. 17) sets out further technical rules on the use of the VMS.
3. Regulation No 1954/2003 – The Contested Regulation
21. As is already evident from the brief reference to the abovementioned acts, 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 No 2847/93 and repealing Regulations No 685/95 and No 2027/95 (OJ 2003 L 289, p. 1, hereinafter referred to as the ‘Contested Regulation’) is not the only relevant Community act governing fishing activities, in particular deep-sea fisheries, in Azorean waters. Indeed, the Contested Regulation forms part of a large number of legislative acts within the wider context of the Community’s CFP.
22. The Contested Regulation was adopted on the basis of Articles 37 EC and 299(2) EC. It establishes a fishing effort regime in a large area of the North Atlantic (ICES areas V, VI, VII, VIII, IX and X and CECAF divisions 34.1.1, 34.1.2 and 34.2.0) known as the ‘Western Waters’. As set out in Article 2 of the Contested Regulation, ICES and CECAF zones are defined in Council Regulation (EEC) No 3880/91 of 17 December 1991 on the submission of nominal catch statistics by Member States fishing in the North East Atlantic (OJ 1991 L 365, p. 1), as amended by Commission Regulation (EC) No 1637/2001 of 23 July 2001 (OJ 2001 L 222, p. 20). It is to be noted that Azorean waters fall within ICES X and CECAF 34.2.0.
23. Recital 2 of the Contested Regulation provides that, as a result of the expiry on 31 December 2002 of the transitional Act of Accession regime of access, certain provisions relating to such access contained in the 1995 Regulations need to be adapted to the new legal situation.
24. Pursuant to Article 3 of the Contested Regulation, Member States have to assess and allocate the levels of fishing effort exerted by vessels equal to or more than 15 metres in length (special provisions apply to vessels less than 15 metres as laid down in Article 4 of the Contested Regulation) as an annual average of the period 1998 to 2002 in each of ICES and CECAF zones for, inter alia, demersal fisheries, excluding deep-sea fisheries covered by Regulation No 2347/2002.
25. Under Articles 7 and 8 of the Contested Regulation, Member States are to establish a list of fishing vessels flying their flag which are authorised to carry out their fishing activities in the relevant fisheries and must take the necessary measures to regulate fishing effort by monitoring the activity of their fleet. Pursuant to Article 10 of the Contested Regulation, Member States have an obligation to notify the Commission of the assessment of fishing effort undertaken under Article 3 and the list of vessels and measures under Articles 7 and 8.
26. Article 11 of the Contested Regulation lays down a procedure whereby the Council or, alternatively, the Commission may adopt a Regulation fixing the maximum annual fishing effort for each Member State and for each relevant area and fishery (hereinafter referred to as the ‘Implementing Regulation’). Article 11 provides:
‘Decision-making
1. On the basis of the information referred to in Article 10 and after close consultation with the Member States concerned the Commission shall submit to the Council, by 29 February 2004, a proposal for a Regulation fixing the maximum annual fishing effort for each Member State and for each area and fishery defined in Articles 3 and 6.
2. The Council, acting by qualified majority on the proposal from the Commission, shall, by 31 May 2004, decide on the maximum annual fishing effort referred to in paragraph 1.
…
3. Should the Council fail to reach a decision by 31 May 2004, the Commission shall adopt, by 31 July 2004, a Regulation fixing the max imum annual fishing effort for each Member State and for each area and fishery defined in Articles 3 and 6, on the basis of the proposal referred to in paragraph 1, in accordance with the procedure laid down in Article 30(2) of Regulation (EC) No 2371/2002.’
27. Article 14 of the Contested Regulation amends a number of provisions of Regulation No 2847/93 relating to the use of the VMS and hailing control system. Article 13 in essence applies the VMS and hailing system of Regulation No 2847/93 in a biologically sensitive area around Ireland as defined in Article 6 of the Contested Regulation. Subparagraph b of Article 13, however, which refers to all other areas, including Azorean waters, applies the VMS only and abolishes the hailing system in those areas.
28. Article 15 of the Contested Regulation provides for the repeal of the 1995 Regulations with effect from (a) the date of entry into force of the Implementing Regulation; or (b) 1 August 2004, whichever is earlier.
29. Article 5 of the Contested Regulation lays down an access restriction rule specific to the Azores, Madeira and the Canary Islands. It provides:
‘1. In the waters up to 100 nautical miles from the baselines of the Azores, Madeira and the Canary Islands, the Member States concerned may restrict fishing to vessels registered in the ports of these islands, except for Community vessels that traditionally fish in those waters in so far as these do not exceed the fishing effort traditionally exerted.
...’
Background facts
1. The applicant
30. The applicant, the Autonomous Region of the Azores, is an autonomous region of the Portuguese Republic. It has legal personality under Portuguese law and, pursuant to the Portuguese constitution, has significant autonomous powers including, inter alia, the power to legislate on matters relating to fisheries (Articles 227 and 228 of the Portuguese Constitution).
2. The Legislative History of the Contested Regulation and subsequent proposals for implementing measures
31. On 16 December 2002, the Commission adopted a proposal which led to the adoption of the Contested Regulation (Commission proposal for a Council Regulation on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation No 2847/93 (COM (2002) 739 final)).
32. On 19 May 2003 and then on 28 May 2003, the Council Presidency respectively issued a discussion paper and a working document discussing the Commission’s proposal and putting forward amendments to it. Notably the Presidency proposed that, in addition to a 200nm restriction zone for tuna species included in the Commission’s proposal, a 50nm restriction zone for deep-sea species be established around the Azores on the basis of Article 299(2) EC.
33. On 4 June 2003, the European Parliament adopted a legislative resolution (P5_TA (2003)0250) on the Commission’s proposal which approved the Commission’s proposal subject to certain modifications, in particular, the maintenance of the regime set out in Regulation No 685/95 for an additional period of 10 years.
34. On 5 September 2003, the Council Presidency presented a Presidency compromise proposal, in agreement with the Commission, containing not only Article 37 but also Article 299(2) EC as a legal base for the Contested Regulation. Article 6.1 of the Presidency compromise proposal provided for a 100nm restricted zone around the Azores, Madeira and the Canary Islands for all species, i.e. not only tuna species as in the original Commission proposal.
35. On 13 October 2003, the Council reached political agreement on the basis of the Presidency compromise proposal of 5 September 2003. On the same date, the Commission made a declaration, attached to the Council minutes, which reads as follows:
‘To complement limitations on access in the Azores and to avoid damage to the sensitive eco-systems in waters up to at least 200nm around the Azores, Madeira and the Canary islands, the Commission will propose shortly a Regulation amending Regulation 850/98 to prohibit fishing with trawl gears.’
36. On 4 November 2003, the Council adopted the Contested Regulation.
37. On 3 February 2004, the Commission made a proposal for a Council Regulation amending Regulation No 850/98 as regards the protection of deep-water coral reefs from the effects of trawling in certain areas of the Atlantic Ocean (COM (2004) 58).
38. On 12 March 2004, the Commission adopted a proposal on an Implementing Regulation pursuant to Article 11 of the Contested Regulation fixing the maximum annual fishing effort for certain fishing areas and fisheries (COM (2004) 166 final).
Procedure
39. On 12 December 2003, the applicant, by letters sent through its legal advisors to the Secretary-General of the Council and to the Director-General of the Fisheries Directorate-General of the European Commission, made an initial application for access to a number of documents relating to the adoption of the Contested Regulation pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
40. By letter of 7 January 2004, the General Secretariat of the Council informed the applicant that it had identified 24 documents which it decided to release in their entirety. On 13 January 2004, the applicant made a confirmatory application claiming that the General Secretariat’s reply did not sufficiently cover all the aspects of its initial request. On 15 January 2004, the Communication and Information Unit of the Commission’s Directorate-General for Fisheries addressed an email to the applicant’s legal advisor responding to its initial request for access to documents. On 10 February 2004, the Council adopted a reply to the confirmatory application and disclosed a further number of documents listed in point 4 of the Council’s reply.
41. By application lodged at the Registry of the Court of First Instance on 2 February 2004, the applicant brought an action, under Articles 230 EC and 231 EC, seeking, inter alia, the partial annulment of the Contested Regulation in so far as it adversely affects Azorean waters, in particular Articles 3, 5(1), 11, 13(b) and 15 of the Contested Regulation and the Annex to the Contested Regulation.
42. By separate act lodged at the Registry of the Court of First Instance on 9 March 2004, the applicant brought an application pursuant to Articles 242 EC and 243 EC and Article 104 of the Rules of Procedure of the Court of First Instance for the partial suspension of the Contested Regulation and/or any other interim measures as may seem appropriate. In particular, the applicant
requests that:
– ‘The operation of Articles 3 and 11 and the Annex of [the Contested Regulation] be suspended pending the judgment of the court in the main action or further order in so far as they:
– Provide for the fishing effort under the Regulation to be determined by reference only to the target species and the ICES/CECAF area but not also by reference to the type of fishing gear used, whether fixed or towed.
– Exclude from the operation of Articles 3 and 11 demersal species covered by Regulation [No] 2347/2002.
– The operation of Article 15 of [the Contested Regulation] be suspended pending the judgment of the court in the main action or further order in so far as the repeal of [the 1995 Regulations]:
– Removes the power of the Community to determine fishing effort by reference not only to target species and ICES/CECAF areas but also by reference to the type of fishing gear used (Articles 3(1), 6 and Annex 1 of Regulation [No] 685/95 and Article 2 and the Annex of Regulation [No] 2027/95) and removes the determination of the same which had been effected by Regulation [No] 2027/95;
– Removes the power to determine a maximum annual fishing effort by area in respect of demersal species covered by Regulation [No] 2347/2002 and removes the determination of the same which had been effected by Regulation [No] 2027/95;
– Removes the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES area X and CECAF [division 34.2.0] for fishing of tuna and tuna-like species (Annex III, paragraph 3 of Regulation [No] 685/95);
– Is capable of taking effect on 1 August 2004, whether or not a Regulation under Articles 11(2) or (3) of [the Contested Regulation] has entered into force.
– The operation of Article 5(1) [of the Contested Regulation] be suspended pending the judgment of the court in the main action or further order in so far as it does not maintain the exclusion of access of Spanish vessels from island waters under the sovereignty or jurisdiction of Portugal in ICES area X and CECAF [division 34.2.0] for fishing of tuna and tuna-like species.
– The operation of Article 13(b) of [the Contested Regulation] be suspended pending the judgment of the court in the main action or further order in so far as it exempts Article 19a(3), 19b, 19c, 19d, and 19e of Regulation [No] 2847/93 from application in the waters under the sovereignty or jurisdiction of Portugal around the Azores.
– In the alternative, the Court grant an interim order to have effect until judgment in Case T‑37/04 or further order to prohibit fishing in Azorean waters for tuna or tuna-like species by Spanish vessels and for demersal and deep-sea species by vessels from Member States other than Portugal.
– Such further order or other relief be granted as may seem just and appropriate in the circumstances.
– The Council be ordered to pay the costs incurred by the applicant.’
43. On 31 March 2004, the Council filed its observations on the application for interim measures. In these observations, the Council contends that the President should:
– dismiss the application as inadmissible;
– subsidiarily, dismiss the application as unfounded;
– order the applicant to pay the costs.
44. By applications lodged at the Court’s Registry, respectively, on 30 March and 1 April 2004, the Commission and the Kingdom of Spain sought leave to intervene in the present proceedings for interim measures in support of the form of order sought by the Council.
45. The applications to intervene were served on the parties pursuant to Article 116(1) of the Rules of Procedure.
46. By letters of 6 April 2004, both the applicant and the Council confirmed that they had no objection to the applications of the Commission and the Kingdom of Spain to intervene in the present proceedings.
47. By order of 20 April 2004, the President of the Court of First Instance granted leave to the Commission and the Kingdom of Spain to intervene in the present proceedings in support of the form of order sought by the Council.
48. On 21 April 2004, the Commission and the Kingdom of Spain submitted their observations on the application for interim measures. In these observations, the Commission and the Kingdom of Spain contend that the President should dismiss the application as inadmissible or alternatively as unfounded and order the applicant to pay the costs.
49. By separate act lodged at the Court’s Registry on 22 April 2004, the Council, in accordance with Article 114(1) of the Rules of Procedure, raised a plea of inadmissibility in the main action whereby it requests that the Court dismiss the application for partial annulment of the Contested Regulation as manifestly inadmissible and order the applicant to pay the costs.
50. On 27 April 2004, the applicant and the Commission were requested to produce, by 28 April 2004, respectively, on the one hand, all documents received in response to the applicant’s demand for access to documents of 12 December 2003 and subsequent confirmatory applications and, on the other hand, copies of the Commission’s proposal for an Implementing Regulation under Article 11 of the Contested Regulation. The Commission produced the requested documents on 27 April 2004. The applicant produced the requested documents on 29 April 2004 and these were accepted as part of the file by decision of 30 April 2004.
51. By separate document lodged at the Court’s Registry on 30 April 2004, the Council requested that two documents annexed to the observations submitted by the Kingdom of Spain on 21 April 2003, consisting of opinions of the Legal Service of the Council, be removed from the file of the present case and not taken into consideration. The Kingdom of Spain was invited to present its observations on the Council’s request at the oral hearing which was scheduled for 5 May 2004.
52. By applications lodged at the Court’s Registry on 29 and 30 April 2004, four organisations, Seas at Risk, WWF – World Wide Fund for Nature (hereinafter referred to as ‘WWF’), represented by R. Buxton, solicitor, and D. Owen, barrister, Porto de Abrigo, Organização de Produtores da Pesca CRL (hereinafter referred to as ‘Porto de Abrigo’) and GÊ-Questa, Associação de Defesa do Ambiente (hereinafter referred to as ‘GÊ-Questa’), represented by P. Linhares Dias, advocate, sought leave to intervene in the present proceedings for interim measures in support of the form of order sought by the applicant.
53. The four prospective interveners were invited to attend the oral hearing scheduled for 5 May 2004 and, without prejudice to the outcome of their respective applications, were invited to present their arguments at that hearing.
54. On 5 May 2004, the applicant, the Council, the Commission, the Kingdom of Spain and the prospective interveners (WWF, Seas at Risk, Porto de Abrigo and GÊ-Questa) presented oral argument at the hearing and responded to questions posed by the President of the Court of First Instance. With regard to the prospective interveners, the President, whilst allowing all four of them to present oral argument as to their demand for intervention as well as to the substantive merits of the present application for interim measures, reserved the final decision on their application to intervene.
55. In view of the fact that the Kingdom of Spain did not object at the hearing to the Council’s request that the two documents annexed to Spain’s observations of 21 April 2004 be removed from the file and not taken into consideration, the President decided, at the hearing, to order the removal of those two documents from the file.
56. On 18 June 2004, the applicant made an application requesting that the Court reopen the written procedure and that the Court admit the relevant section of the June 2004 report of the Advisory Committee on Fisheries management (ACFM) of the International Council for Exploration of the Sea (ICES).
The President decided to admit the said report and, on 30 June 2004, the Registrar of the Court of First Instance transmitted a copy of that report to the other parties so that they could present any observations they might have.
On 6 July 2004, the Council, the Commission and the Kingdom of Spain presented their observations.
Law
On the applications for intervention by WWF, Seas at Risk, Porto de Abrigo and GÊ-Questa
57. As noted above, WWF, Seas at Risk, Porto de Abrigo and GÊ-Questa have sought leave to intervene in accordance with the second paragraph of Article 40 of the Statute of the Court of Justice. At the hearing, the other parties had no observations as to the application of those prospective interveners to be granted leave to intervene in the present proceedings.
58. Under the second paragraph of Article 40 of the Statute of the Court of Justice, which applies to the Court of First Instance pursuant to the first paragraph of Article 53 of the same Statute, a person may intervene in a case submitted to the Court subject to proof of an interest in the result of the case.
59. On this point, it has consistently been held that an interest in the result of the case means a direct and present interest in the decision on the claims. In particular, it is necessary to ascertain whether the prospective intervener is directly affected by the measure in question and that his interest in the result of the case is certain (see orders in Case T‑54/00 R Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council
[2000] ECR II‑2875, paragraph 15; in Case T‑138/98 ACAV and Others
v Council
[1999] ECR II‑1797, paragraph 14, and judgments cited therein). Associations may be admitted to intervene to protect the interests of their members in cases raising matters of principle capable of affecting those interests (see orde in Case C‑151/98 P Pharos v Commission
[1998] ECR I‑5441, paragraph 6, and orders cited therein).
60. Porto de Abrigo is a limited responsibility cooperative constituted as an organisation of producers. Its statute provides that its principal aim is to defend the interests of its members, who are mainly fishermen active in the Azores.
61. It is evident that the Contested Regulation, which governs fishing activities within, inter alia, Azorean waters, and any order suspending its application or other interim measures, would have a significant and direct impact on the members of Porto de Abrigo whose livelihood depends on such fishing activities. It must therefore be considered that Porto de Abrigo has a direct and certain interest in the outcome of the present proceedings.
62. Porto de Abrigo should, therefore, be admitted to intervene in the present proceedings, as requested, in support of the form of order sought by the applicant.
63. GÊ-Questa is a not-for-profit association for the defence of the environment, whose principal responsibilities are the defence and marketing of the environment as well as the study and the protection of the national and cultural heritage of the Azorean archipelago. The Statute of GÊ-Questa specifically directs it to protect the natural heritage of the Azorean archipelago which includes the fish population and marine ecosystems of that archipelago.
64. An order suspending the Contested Regulation would have a direct effect on fishing activities within Azorean waters including the use of fishing gear that may have a significant impact on the ecosystem of the Azorean waters, an area which forms the principal area of activity of GÊ-Questa. It is, therefore, considered that GÊ-Questa has a direct and certain interest in the outcome of the present proceedings.
65. GÊ-Questa should, therefore, be admitted to intervene in the present proceedings, as requested, in support of the form of order sought by the applicant.
66. Seas at Risk states that it is an independent international non-profit-making environmental organisation based in the Netherlands. Seas at Risk’s aim is the protection and restoration of the marine environment. Seas at Risk is the largest European federation of environmental non-governmental organisations with 16 participant organisations in eight Member States and in Norway, and represents those organisations at EU level, within the OSPAR Commission, the North East Atlantic Fisheries Commission, the International Maritime Organisation and North Sea Conference processes. It works on marine environmental issues and its geographic scope covers the whole of the North East Atlantic.
67. WWF’s aims are even wider than those of Seas at Risk. According to its application, WWF is one of the world’s largest conservation organisations with almost five million regular supporters and a geographic scope covering more than 100 countries. Its mission is to stop the degradation of the planet’s natural environment. It is involved in an Endangered Seas Programme which covers oceanic waters across the world. WWF is also engaged in a Northeast Atlantic Programme focused on promoting sustainable fisheries and networks of marine protected areas within the OSPAR commission and Member States.
68. In their joint application to intervene, Seas at Risk and WWF claim that they have a direct and specific interest in the outcome of the present proceedings. They argue that their activities focus on deep-sea fisheries and protection of the marine environment and marine habitats including seamounts, and that they have invested significant resources over recent years in promoting the protection of the fish stocks and habitats falling within the regime of the Contested Regulation. Seas at Risk and WWF further maintain that they participated in lobbying activities and contacts with governments and Community institutions before and during the legislative procedure that led to the adoption of the Contested Regulation. Finally, Seas at Risk and WWF argue that they should be admitted to intervene on the basis that the application for interim measures raises important questions of direct and specific interest to them about the interaction between European Community environmental policy and the CFP. The members of the two organisations would, they maintain, expect them to put their case before the Community Courts in circumstances like the present.
69. These arguments cannot be accepted. By contrast to the two Azorean organisations, the scope of the interests of Seas at Risk and WWF is too wide and general to be significantly affected by the outcome of the present proceedings and hence it is not of such a nature as to allow the judge hearing the application for interim measures to grant WWF and Seas at Risk leave to intervene in the present proceedings.
70. Indeed, despite their expertise and involvement in environmental issues, both organisations’ aims and activities cover large geographic areas and are not focused exclusively or mainly in Azorean waters. It is, however, only with regard to Azorean waters that the applicant requests the partial suspension of the Contested Regulation. In addition, it is to be observed that the Contested Regulation governs fishing activities in Azorean waters and its application will not affect significantly the activities of WWF or Seas at Risk, which consist in a scientific research of the environment and lobbying on environmental issues within a much wider context. The members and supporters of Seas at Risk and WWF are located throughout the world and their interests are even more remote, consisting in environmental protection in general.
71. It follows that Seas at Risk and WWF have not proven a direct and present interest in the decision on the applicant’s claims in the proceedings for interim relief, so that their application for leave to intervene ought to be dismissed.
On the application for interim measures
1. Arguments of the parties
Arguments presented by the applicant
Admissibility
72. The applicant submits that it has standing to bring proceedings under Article 230(4) EC, despite the fact that the contested act is a Council Regulation, on the basis that it is directly and individually concerned by it.
73. As regards the criterion of direct concern, the applicant submits that the Contested Regulation directly impinges on its powers to legislate and regulate fisheries matters within waters under its jurisdiction. The effects of the Contested Regulation will flow directly from it as Member States, and in particular Portugal, are left with no latitude as to the implementation of the measure.
74. With regard to individual concern, the applicant raises two main arguments. First, the applicant submits that it benefits from specific Treaty protection under Article 299(2) EC and, in addition, that the Contested Regulation expressly recognises its particular position and includes specific provisions (Article 5 of the Contested Regulation) with regard to it. Second, the Contested Regulation deprives the applicant of its power to regulate fishing in the Azores.
A prima facie case ( fumus boni juris )
75. The applicant maintains that its action against the Contested Regulation, which is based on six distinct pleas in law, is not unfounded.
76. First, the applicant contends that the Contested Regulation is in breach of environmental law, in particular Articles 6 and 174(1) to (3) EC and the Base Regulation by failing to respect important environmental principles which are mandatory in the context of legislation in the field of the CFP, namely the sustainability, precautionary, preventive action, rectification at source, and polluter pays principles. According to the applicant, all the above principles are infringed because the Contested Regulation will lead to intensification of fishing effort, damage to the marine environment and depletion of fish stocks.
77. In particular, the applicant submits that the Contested Regulation will have the following effects. By repealing the 1995 Regulations which limited access of foreign vessels in Azorean waters and, in essence, prohibited the use of towed gear in the same waters, the Contested Regulation will lead to a significant increase in fishing effort by the industrial fleet of other Member States. This is because Articles 3 and 11 of the Contested Regulation exclude reference to fishing gear from the definition of relevant fisheries, thus indirectly allowing the use of towed gear. In addition, those provisions exclude relevant species included in Annex I to Regulation No 2347/2002 which limited fishing effort for a number of deep-sea species. Moreover, the applicant contends that Article 15 of the Contested Regulation repeals the 1995 Regulations even before the coming into force of an Implementing Regulation limiting fishing effort. Article 5 establishes a 100nm protected zone, leaving the 100‑200nm zone unregulated and enabling foreign vessels to fish for all kinds of species including deep-sea stocks and tuna in the latter zone. Finally, Article 13 of the Contested Regulation abolishes the hailing system, thus depriving the applicant of vital information which would enable it to control fishing activities in the waters within its jurisdiction more effectively.
78. In the light of those alleged effects, the applicant argues that the sustainability principle enshrined in Article 6 EC and Article 2(1) of the Base Regulation is infringed. The precautionary principle (enshrined in Articles 6 and 174(2) EC as well as Article 2 of the Base Regulation) is also breached as the Council did not have regard to scientific evidence and as the Contested Regulation will lead to intensive fishing in the relevant zones and will deprive the applicant from vital scientific information which it could use for future preventive action. The principle of preventive action (Article 174(2) EC and Articles 7, 8 and 26 of the Base Regulation) is infringed because the Council ignored the serious threat posed to the environment by adopting the Contested Regulation. The rectification at source principle is infringed because the Contested Regulation deprives the local authorities, which know Azorean waters best, from their powers to deal with environmental issues relating to Azorean waters. Finally, the polluter pays principle is violated because the Contested Regulation allows the industrial fleet to cause harm to the environment without paying for such harm.
79. Second, the applicant claims that the Contested Regulation is inconsistent with primary and secondary law provisions which aim to protect the Azores. In particular, the applicant maintains that the Contested Regulation breaches Articles 158 EC and 299(2) EC on the basis that it fails to protect the Azores contrary to the aim of those provisions. The Contested Regulation, by harming the environment of the Azores and by depleting Azorean fish stocks, will harm the local fishing industry and increase the disparities between the Azores and mainland Europe.
80. Third, the applicant submits that, by failing to protect the local fishing population, the Contested Regulation breaches the principles of relative stability enshrined in Regulation No 2371/2002 (Recitals 16, 17, 18 and Article 20 of the Base Regulation).
81. Fourth, the applicant
contends that, in adopting the Contested Regulation, the Council infringed an essential procedural requirement by failing to re-consult the European Parliament despite a specific request to that effect in the Parliament’s resolution and despite significant modifications in the final version of the Contested Regulation, notably the inclusion of Article 299(2) EC as a legal base, the reduction of the protected zone around the Azores to 100nm, the abolition of the hailing system and the exclusion of deep-sea species from the scope of the maximum effort regime.
82. Fifth, the applicant
maintains that the Council infringed Article 4(2) of the Base Regulation by failing to take account of available scientific, technical and economic advice and in particular reports by the Scientific, Technical and Economic Committee for Fisheries (STECF) and by failing to engage in impact assessment. This, according to the applicant, is evident from the replies by the Commission and the Council to the applicant’s requests for access to documents.
83. Sixth, the applicant submits that the Council has infringed Article 253 EC by failing to provide adequate motivation in the Contested Regulation. In particular, the Contested Regulation will lead to the opposite results of those set out in Recitals 3 and 6, namely protection of Azorean waters. No reasons are given for the change to the preceding regime or the repeal of the 1995 Regulations.
84. Finally, the applicant refers to a number of additional arguments raised in the main action to the effect that the Contested Regulation is in breach of Regulation No 1275/94, fundamental principles of Community law and the international law of the sea. It is to be noted, however, that no information, apart from a reference to the main action, is provided in the application for interim relief with regard to those pleas.
Urgency
85. The applicant submits that interim measures are necessary because, in the absence of the interim measures sought, the marine environment, fish stocks and the local economy will suffer serious and irreparable damage. In the absence of interim relief, the applicant would therefore be denied full and effective judicial protection.
86. As regards the marine environment, the applicant contends that the damaging effects of the Contested Regulation will start on 1 August 2004 at the latest, which is the date when the 1995 Regulations shall be formally repealed by virtue of Article 15 of the Contested Regulation. The applicant maintains that the authorisation of fishing for deep-sea species by foreign vessels in Azorean waters will herald, for the first time, the use of harmful gear and methods such as bottom trawling, non-bottom trawling, bottom gill net fishing, and intensive long-line fishing, which remove too much fish, catch all species indiscriminately, and cause the so-called problem of ‘ghost fishing’ (with accentuated results in deep-sea environments) whereby
lost gear continues to cause damage for a long period of time. All these methods would inflict significant collateral damage by destroying the sea-bed, reefs, and corals. According to the applicant, the Commission’s Proposal on Trawling may not be adopted in time and, even if adopted, would be insufficient as it would fail to prohibit other harmful methods of intensive industrial fishing.
87. With regard to fish stocks, the applicant also maintains that the damaging effects of the Contested Regulation will commence on 1 August 2004 at the latest. It submits that many foreign (Spanish) vessels have already started fishing intensively in Azorean waters due to statements made by the Commission and the Spanish Ministry of Agriculture to the effect that the Contested Regulation is already in force. First, the applicant contends that the Implementing Regulation envisaged in Article 11 of the Contested Regulation fixing maximum levels of fishing effort will not be adopted in time and that there would hence be a lacuna for a significant period of time. Second, the intensive fishing methods heralded by the Contested Regulation will result in depletion of fish stocks. The applicant submits, for example, that Spanish vessels use intensive long-lines which have up to 12 times more hooks (24000 hooks) than those used by Azorean vessels (2000 hooks). Furthermore, Spanish vessels have greater autonomy and storage capacity and can therefore fish intensively for much longer periods of time than Azorean vessels. Due to the rich early rewards of previously untapped deep-sea fisheries, a large number of vessels are expected to fish in Azorean waters. This would alter the delicate environmental balance, which is already close to unsustainable levels, leading to a ‘boom and bust’ effect and the rapid and irreversible depletion of fish stocks. In this respect, the applicant stresses that the special nature of deep-sea fish (low fecundity rates, late maturity, longevity) makes recovery extremely slow.
88. As far as the Azorean fishing industry is concerned, the applicant submits that depletion of fish stocks will cause the collapse of the local industry which is particularly dependent on fishing, especially deep-sea fishing (accounting for 59% of Azorean catches). According to the applicant, 31% of the Azorean catch was taken from fishing banks located within the ‘liberalised’ zone of 100‑200nm. Almost 12% of the Azorean active population is involved in fishing-related activities.
89. The applicant acknowledges that it cannot predict when the damage will become irreparable but expects the effects to be felt within one fishing season. In any event, the applicant urges the Court to apply the precautionary principle and grant the interim measures requested in order to avoid such effects despite a lack of mathematical certainty as to the timing of the ensuing damage.
Balance of interests
90. The applicant maintains that the balance of interests clearly leans in favour of the grant of interim measures given that, if interim measures were granted, fish stocks and the marine ecosystem would be protected pending judgment in the main action while no other person would be disadvantaged and, at the same time, the outcome of the main action would not be prejudiced. If the Council prevails, the interests of fishing fleets of other Member States, in particular Spain, will have been preserved; if the applicant prevails, its interests will have been preserved.
Arguments presented by Porto de Abrigo and GÊ-Questa
91. Porto de Abrigo and GÊ-Questa support the applicant’s arguments that the Contested Regulation will permit intensive fishing in Azorean waters, in particular by Spanish vessels which, by comparison with Azorean vessels, have much greater capacity, have re-usable fishing gear, use long-lines extending over longer areas (50/60nm instead of 30nm) and stay at sea for much longer periods (60 days instead of the typical Azorean vessel’s one week). Already, a monthly average of 58 Spanish vessels is fishing in Azorean waters whereas the usual total number of vessels used to be four. This intensive fishing will cause complete decimation of fish stocks in the 100‑200nm zone and even in the 0‑100nm zone through an effect known as ‘suction’ (fish being removed from fishing banks that straddle the 100‑mile line). Decimation of fish stocks would cause great environmental harm and the collapse of the local fishing industry.
Arguments presented by the Council, the Commission and the Kingdom of Spain
92. First, the Council, supported by the Commission and the Kingdom of Spain, contends that the application is manifestly inadmissible due to manifest inadmissibility of the main action.
93. In this respect, the Council, first, maintains that the Contested Regulation is a measure of general application and not a decision in disguised form and cannot therefore be attacked by the applicant. Second, the applicant is, in any event, not individually concerned. Its general interest in the economic prosperity of the fishing industry of the region is not sufficient to meet the standard test for natural or legal persons to bring proceedings under Article 230(4) EC, namely that the contested act must affect their legal position by reason of certain attributes peculiar to them or by reason of a factual situation that differentiates them from all other persons and distinguishes them individually in the same way as the addressee of a decision.
In this respect, the Council maintains that the applicant has not shown how the Contested Regulation affects its economy in a way different to that of other regions, including other ‘outermost’ regions. Third, the fact that the Azores are mentioned in Article 299(2) EC is not sufficient to provide the applicant with locus standi ; a contrary interpretation would provide outermost regions with privileged access to the Court contrary to the system of judicial protection established in the EC Treaty. Finally, the fact that the applicant’s legislative and regulatory powers are affected does not result in individual or direct concern; this is an inevitable effect of all Regulations of general application.
94. The Council, supported by the Commission and Spain, further maintains that the application is, in any event, unfounded, the applicant not having shown a prima facie case.
95. First, the Council, noting the wide discretion that the Community legislator enjoys in this field, contends that environmental provisions are not applicable because the legal bases of the Contested Regulation were Articles 37 EC and 299(2) EC.
96. Second, the Council submits that, in any event, the Contested Regulation does not infringe environmental law provisions (Articles 6 and 174 EC and general environmental law principles) as the regime established by it will not cause any harm to the environment or fish stocks. Indeed, according to the Council, the Contested Regulation reconciles various interests including environmental protection, sustainable exploitation of fish stocks and protection of the Azorean fishing industry while, at the same time, respecting the principle of non-discrimination on grounds of nationality enshrined in Article 12 EC.
97. The Council, supported by the Commission and Spain, further maintains that the Contested Regulation takes into account environmental concerns by capping fishing effort on the basis of historical averages and should be seen in the context of other CFP measures (such as Regulation No 2340/2002, No 2347/2002 as well as the Implementing Regulation shortly to be adopted under Article 11 of the Contested Regulation) which as a whole provide adequate environmental protection for all deep-sea species. There is no evidence of any environmental or other problems caused by the abolition of the so-called hailing system. Nor is there any evidence of any problems being caused with regard to tuna species which, being a migratory species, are adequately protected through the International Commission for the Conservation of Atlantic Tunas (ICCAT) and TACs and quotas established by secondary Community legislation.
98. Third, the Council and the Commission, noting that the Council enjoys wide discretion in such matters of economic complexity, submit that the Contested Regulation does not infringe Articles 299(2) EC and 158 EC as it provides adequate and proportionate protection to the Azorean industry by establishing a protected 100nm zone.
99. Fourth, relative stability is also preserved given that the Contested Regulation caps effort on the basis of historical averages. In this respect, the Commission further argues that the principle of relative stability is, in any event, only relevant for the setting of TACs and not in the context of a limitation of fishing effort such as the one set out in the Contested Regulation.
100. Finally, the Council, supported by the Commission and Spain, contends that it did not breach any procedural requirements. It did not need to re-consult the Parliament given that the modifications introduced did not alter the essence of the text of the Regulation as a whole. The Contested Regulation is adequately motivated as is apparent from its recitals. Further, scientific evidence was taken into account, in particular the reports by STECF and by ICES.
101. As regards urgency, the Council, the Commission and Spain contend that the absence of interim measures will not cause serious and irreparable harm and that therefore the urgency criterion is not met.
102. First, the Council maintains that the Contested Regulation will not herald unlimited fishing effort but rather will limit fishing effort on the basis of historical averages. The Contested Regulation together with the 2002 Regulations provide adequate protection for fish stocks and the environment. Second, interim measures are not necessary because there are other more appropriate avenues that can be pursued to protect the environment and fish stocks if need be such as measures under Articles 7 and 8 of the Base Regulation which the applicant has failed to pursue. The request for interim measures is premature, given that on both issues where the applicant claims irreparable damage (environmental damage due to bottom trawling and depletion of fish stocks), the Commission has submitted proposals to take care of any identified concerns. In any event, the Contested Regulation, together with the 2002 Regulations, adequately protects fish stocks because of the cap on fishing effort. Finally, the Council notes that the applicant has not provided any evidence at all on the urgency regarding tuna species. Spain expresses its strong agreement with this conclusion and points out that, given the highly migratory character of tuna, restricting access in particular areas has no effect and is discriminatory on grounds of nationality.
103. Finally, the Council, the Commission and Spain contend that the balance of interests leans in favour of rejecting the application. First, the measures requested by the applicant lead to less not more environmental protection. Second, a suspension would prolong a period of legal uncertainty concerning the application of the 1995 Regulations. Finally, a suspension would affect thousands of fishermen and hundreds of vessels in a large area of the North East Atlantic. Therefore, in the circumstances, only compelling reasons could justify the grant of interim measures.
2. Findings of the President
104. Pursuant to Article 104(2) of the Rules of Procedure, an application for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case ( fumus boni juris ) for the interim measures applied for. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order in Case C‑268/96 P(R) SCK and FNK v Commission
[1996] ECR I‑4971, paragraph 30). Where appropriate, the judge hearing such an application must also weigh up the interests involved (order in Case C‑445/00 R Austria v Council
[2001] ECR I‑1461, paragraph 73). The measure requested must further be provisional inasmuch as it must not prejudge the points of law or fact in issue or neutralise in advance the effects of the decision subsequently to be given in the main action (order in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others
[1995] ECR I‑2165, paragraph 22).
105. Furthermore, in the context of that overall examination, the judge hearing the application enjoys a broad discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a preestablished scheme of analysis within which the need to order interim measures must be analysed and assessed (order in Commission v Atlantic Container Line and Others, cited above, paragraph 23).
106. It is in the light of the foregoing principles that the application for interim measures must be examined.
Admissibility
107. It is necessary first to examine whether, as the Council, the Commission and Spain contend, the application for interim measures ought to be declared inadmissible on the basis of manifest inadmissibility of the main action.
108. In this respect, it should be observed that, on the basis of established case-law, although it is true that the question of the admissibility of the main action should not, in principle, be examined in the context of proceedings for interim relief, so as not to prejudge the merits of the case, it may nevertheless be necessary, in order for an application to suspend the operation of a measure to be declared admissible, for the applicant to prove the existence of certain matters permitting the conclusion that the main action to which his application for interim relief relates is admissible, so as to prevent him from obtaining, by way of proceedings for interim relief, the suspension of the operation of a measure which the Court of First Instance may subsequently refuse to annul, his action having been ruled inadmissible when examined on its merits (order in Case C‑329/99 P(R) Pfizer Animal Health v Council
[1999] ECR I‑8343, paragraph 89).
109. Such an examination of the admissibility of the main action is necessarily summary because the proceedings for interim relief are by nature urgent (order in Case C‑300/00 P Federación de Cofradías de Pescadores and Others v Council and Commission
[2000] ECR I‑8797, paragraph 35).
110. Indeed, in the context of proceedings for interim relief, the admissibility of the main action can only be assessed on a prima facie basis, the aim being to examine whether the applicant has adduced sufficient elements which justify the prima facie conclusion that the admissibility of the main action cannot be excluded. The judge hearing the interim measures action should only declare that action inadmissible where admissibility of the main action can be wholly excluded. Otherwise, to rule, at the stage of the proceedings for interim relief, on the admissibility of the main action, when its admissibility is not, prima facie, wholly excluded, would be tantamount to prejudging the Court of First Instance’s decision in respect of that action (orders in Case T‑342/00 R Petrolessence and SG2R v Commission
[2001] ECR II‑67, paragraph 17; in Case T‑195/01 R and in Case T‑207/01 R Gibraltar v Commission
[2001] ECR II‑3915, paragraph 47).
111. It should therefore be examined whether the applicant has shown, at least on a prima facie basis, that it has standing to bring legal proceedings for the partial annulment of the Contested Regulation under the fourth paragraph of Article 230 EC.
112. It should first be observed that, to the extent that it has legal personality under Portuguese law, the Autonomous Region of the Azores may, in principle, bring an action for annulment under the fourth paragraph of Article 230 EC, which provides that any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former (Case C‑452/98 Nederlandse Antillen v Council
[2001] ECR I‑8973, paragraph 51, hereinafter referred to as ‘ Netherlands Antilles I’ ).
113. As the Council correctly notes, the Contested Regulation is a measure of general application and not a decision in disguised form. It governs fishing activities for deep-sea fish stock throughout a large area of the North East Atlantic known as the Western Waters and applies without distinction to all fishermen wishing to pursue such fishing activities in that area. In addition, despite mentioning expressly the Azores in Recital 6 and Article 5, the Contested Regulation applies without distinction to all outermost regions referred to in Article 299(2) EC, namely the Azores, Madeira and the Canary Islands.
114. Nonetheless, the nature of the contested act as a measure of general application is not an absolute bar to it being challenged by a natural or legal person under Article 230(4) EC. According to settled case-law, the fact that a measure is of general application does not mean that it cannot be of direct and individual concern to certain natural or legal persons ( Netherlands Antilles I, cited above, paragraph 51, Case C‑309/89 Codorniu v Council
[1994] ECR I‑1853, paragraph 19).
115. It is, therefore, important to consider whether, on a summary examination, the Autonomous Region of the Azores may be considered to be directly and individually concerned by the Contested Regulation.
116. Regarding the criterion of direct concern, it is settled case-law that for an applicant to be directly concerned by a Community measure in the sense of Article 230(4) EC, that measure must directly affect the legal situation of the applicant and its implementation must be purely automatic and result from Community rules alone without the need for the application of other intermediate measures (Joined Cases T‑198/95, T‑171/96, T‑230/97, T‑174/98 and T‑225/99 Comafrica and Dole Fresh Fruit Europe v Commission
[2001] ECR II‑1975, paragraph 96). In this respect, it is to be observed that the Contested Regulation is directly applicable in all Member States and will produce immediate effects without any need for further measures to be taken by Member States. The Contested Regulation will affect the legal situation of the applicant significantly and immediately to the extent that the applicant will be deprived of powers to legislate in the area of fisheries in the 100‑200nm zone, and to the extent that fishing activities, which according to the applicant form a significant part of its economy, will be affected by the Contested Regulation. It can therefore be concluded that, at least on a prima facie basis, the applicant has shown that it is directly concerned by the Contested Regulation.
117. As regards individual concern, it should be noted that a measure of general application such as a regulation can be of individual concern to natural and legal persons only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (Case C‑142/00 P Commission v Nederlandse Antillen
[2003] ECR I‑3483, paragraph 65, hereinafter referred to as ‘ Netherlands Antilles II ’; Netherlands Antilles I, cited above, paragraph 60; Case C‑451/98 Antillean Rice Mills v Council
[2001] ECR I‑8949, paragraph 49; Case C‑50/00 P Unión de Pequeños Agricultores v Council
[2002] ECR I‑6677, paragraph 36).
118. In this respect, it is to be observed that, according to settled case-law, the general interest which a region such as the Autonomous Region of the Azores, an entity responsible for certain economic affairs within its jurisdiction, in particular fisheries, may have in obtaining a result that is favourable for its economic prosperity is not sufficient on its own to enable it to be regarded as being individually concerned, for the purposes of the fourth paragraph of Article 230 EC ( Netherlands Antilles II, cited above, paragraph 69).
119. Moreover, in order to show individual concern, it is not sufficient that the applicant benefits from specific Treaty protection (Article 299(2) EC) or that the Contested Regulation mentions the applicant expressly and specifically in its Recital 6 and Article 5 or that the Council had to take the applicant’s situation into account in adopting the Contested Regulation (see to this effect Netherlands Antilles II, paragraphs 74 to 76). Otherwise, as the Council correctly points out, the outermost regions mentioned in Article 299(2) EC would acquire rights to bring legal proceedings akin to the rights of Member States. Such a result would be contrary to Article 230 EC which does not entitle, by analogy, regional entities to bring actions under the same conditions as Member States (see by analogy Netherlands Antilles I, cited above, paragraph 50, and case-law cited therein).
120. It follows that the applicant needs to show on the facts, at least on a prima facie basis, that it is affected by the Contested Regulation by reason of a factual situation which differentiates it from all other persons including, in the circumstances, other outermost regions (see by analogy Netherlands Antilles I, cited above, paragraph 72).
121. Even though the applicant has not made an effort to show clearly how it is affected by the Contested Regulation in a different manner than other outermost regions which would differentiate it sufficiently to make it individually concerned, it has provided some evidence on the basis of which it cannot be wholly excluded that it is in a factual situation that may differentiate it in such a way.
122. First, the applicant’s legal powers will be affected directly by the Contested Regulation to a significant extent given that the Contested Regulation will deprive it of the power to regulate fishing activities within the 100‑200nm zone. Such an effect on a region’s legal powers can lead to the consideration that the region in question is individually concerned within the meaning of Article 230(4) EC (see to this effect Joined Cases T‑132/96 and T‑143/96 Freistaat Sachsen, Volkswagen and Volkswagen Sachsen v Commission [1999] ECR II‑3663, paragraph 84, and case-law cited therein, in particular Case T‑288/97 Regione Autonoma Friuli Venezia Giulia v Commission
[1999] ECR II‑1871, paragraphs 31 to 32).
123. Second, the situation of the Azores is peculiar in that its marine ecosystem is characterised by a large presence of seamounts which give rise to localised tides and upwellings, the existence of hydrothermal vent fields and natural hot springs, the absence of a continental shelf and a high dependency on deep-sea fishing. According to the applicant, almost 12% of the Azorean working population is dependent on fishing-related activities and deep-sea fishing in the Azores accounts for almost 60% of all Azorean catches by value. At the hearing, the applicant submitted that fishing-related activities represent 5% of its gross domestic product, a proportion which cannot be considered insignificant (see to this effect the joined Opinion of Advocate General Léger of 13 March 2001 delivered in Cases C­-301/97 Netherlands v Council
and Netherlands Antilles I
[2001] ECR I‑8853, paragraph 95, where he concludes that a sector representing only 0.9% of the gross domestic product of the Netherlands Antilles was not sufficient to prove peculiar attributes to that region but that a different conclusion could be reached ‘had the economic sector affected by the measure at issue represented a far more significant proportion of the gross domestic product of the [overseas countries and territories] in question’).
124. On the basis of this factual evidence produced by the applicant, the judge hearing the application for interim measures considers that, while there are serious doubts as to whether the applicant has shown that the Contested Regulation affects it differently than other outermost regions, it cannot be wholly excluded that the applicant will be able to prove, in the main action, that the Contested Regulation is of individual concern to it.
125. In the light of the above considerations, given that admissibility of the main action cannot be wholly excluded at this stage, the application for interim measures cannot be dismissed on grounds of inadmissibility alone.
Prima facie case, urgency and balance of interests
126. In assessing whether the applicant has proven that it has met the cumulative conditions which are necessary for the granting of interim relief, namely that of a prima facie case and urgency, it is important to consider at the outset the nature of the interim measures requested and the balance of interests by proceeding to balance the effects that an order granting such interim measures would have on the applicant, the defendant, the interveners, the Community legal order and third parties.
Balance of interests – Effects of the interim measures requested
127. It should first be observed that the very nature of a number of the requested interim measures appears inappropriate and disproportionate in the light of the main aim that they intend to achieve, namely protection of the Azorean marine ecosystem and fish stocks. In this respect it is worth examining the effects that each of the requested interim measures would have.
128. Suspension of Article 3 of the Contested Regulation would have significant wide-ranging effects by removing the obligation on Member States to assess and allocate fishing effort on the basis of historical averages. Such a suspension, by its very nature, does not appear apt, let alone proportionate, to achieve the aim sought by the applicant, that is protection of the marine environment and preservation of fish stocks. Suspension of this provision to the extent that it removes fishing gear from the definition of relevant fisheries would not amount to an obligation on the Community institutions to define fisheries by fishing gear nor would it result in a prohibition of the use of particular fishing gear. Similarly, suspension in so far as this provision excludes from its ambit species covered by Regulation No 2347/2002, for which that previous Regulation, which is not under attack, applies would result in overlapping regimes and would not necessarily result in greater protection of those species.
129. Suspension of Article 5 of the Contested Regulation would in essence remove the protection for the 0‑100nm zone around the Azores, an effect that appears to be contrary to what the applicant is seeking to achieve. It is to be noted that Article 5 establishes a protected zone of 100nm for all species, including tuna and deep-sea species. To the extent that what is demanded is an exclusion of Spanish vessels fishing for tuna and tuna-like species from the 0‑200nm zone, this effect would therefore not be achieved by a suspension of Article 5 of the Contested Regulation.
130. Suspension of Article 11 of the Contested Regulation would prevent the Council and the Commission from adopting the Implementing Regulation fixing the maximum annual fishing effort for each Member State and for each area and fishery defined in Articles 3 and 6. Such a measure would not help environmental protection or the preservation of fish stocks in Azorean waters. Even the applicant considers that the Implementing Regulation, when adopted, would, at least partially, protect Azorean waters.
131. Suspension of Article 13(b) of the Contested Regulation would re-apply the so-called hailing system and would, thus, have significant effects on a large number of fishing vessels which would have to comply with this system. However, a reinstatement of the hailing system would, at most, enable the applicant to collect some additional information as to the activities of vessels within Azorean waters and the applicant has not shown that the VMS, even if it provides it with less information, would prevent the applicant from enforcing the regime established by the Contested Regulation or from monitoring adequately the activities of vessels within Azorean waters. Indeed, even if, as the applicant claims, this provision restricted the amount of information that the Azorean authorities could require from vessels operating within their jurisdiction, there is no evidence showing how this could have concrete effects on the marine ecosystem and fish stocks.
132. Suspension of Article 15 of the Contested Regulation which repeals the 1995 Regulations as of 1 August 2004 at the latest would affect all fishermen wishing to fish in Azorean waters and would result in great legal uncertainty as to which regime would be applicable in Azorean waters. In essence a suspension of this provision would reinstate a whole previous legal regime which the Community legislator has decided to replace with the regime established in the Contested Regulation. There is admittedly considerable uncertainty as to whether certain provisions of the 1995 Regulations are so closely linked to the transitional regime of the Act of Accession and Regulation No 1275/94 that they should be considered to be inapplicable following the expiry of the transitional accession regime on 1 January 2003. It is true that suspension of Article 15 may have the effect of allowing the continuation of the previous regime which, at least according to the applicant, would provide adequate protection of Azorean waters. However, it should be noted that the 1995 regime provided such protection not directly by establishing environmental rules such as prohibition on the use of fishing gear but indirectly through access rules limiting access of foreign vessels in Azorean waters. Suspension of Article 15 would perpetuate those provisions of the 1995 Regulations which limit access of foreign vessels in Azorean waters despite the fact that the transitional access regime established by the Act of Accession ought to have ended by 31 December 2002. It should be observed that such provisions are directly discriminatory on grounds of nationality and thus violate a principle enshrined in Article 12 EC and in Article 17(1) of the Base Regulation.
133. Finally, it should be observed that the alternative measures requested by the applicant ─ the prohibition of fishing for tuna or tuna-like species by Spanish vessels and for demersal and deep-sea species by non-Portuguese vessels in Azorean waters ─ are, in essence, not environmental protection rules but access rules which would be directly discriminatory on grounds of nationality and would affect negatively the interests of foreign vessels. Such a requested interim order would not aim at the protection of the marine environment and fish stocks directly, it would not prohibit the use of harmful gear and it would not impose specific effort limitation or other environmentally sound measures but would rather simply exclude foreign vessels from Azorean waters. It appears, therefore, by its very nature, disproportionate.
134. It follows from this examination of the nature of the requested interim measures that, contrary to the applicant’s submissions, the partial suspension of the Contested Regulation or the alternative interim measures requested would have significant negative effects on third parties and would disrupt the operation of the Community’s CFP.
135. Indeed, the Contested Regulation is a measure of general application which will govern in an abstract manner a wide range of fishing activities affecting a very large number of fishing vessels and fishermen. A partial suspension of the Contested Regulation would affect the interests of those fishermen from other Member States, and in particular Spanish fishermen, by suspending rights granted to them by the Community legislator to pursue fishing activities without discrimination on the grounds of nationality, inter alia, in Azorean waters.
136. Those potentially far-reaching consequences of a partial suspension of the Contested Regulation on very large numbers of interested persons need to be measured against the necessity of the requested interim measures to prevent alleged serious and irreparable damage pending the resolution of the main action. In this context, account needs to be taken of the serious nature of the alleged damage which concerns environmental issues.
137. Finally, it should be observed that such an assessment would need to also take into account the fact that, in the context of the CFP, the Council, as the legislator, enjoys a significant margin of discretion which corresponds to the political responsibilities given to that institution by Articles 34 EC to 37 EC. In reviewing the exercise of the Council’s power in this context, the Court must confine itself to examining whether there has been a manifest error or misuse of power or whether the authority in question has clearly exceeded the bounds of its discretion (see to this effect Case C‑4/96 Northern Ireland Fish Producers’ Association (NIFPO)
[1998] ECR I‑681, paragraph 42, and judgments cited therein).
138. In the light of the above, the judge hearing the application for interim measures should not, other that in a situation of obvious urgency, override the Council’s assessment without running the risk of encroaching upon that institution’s power of assessment (see order in Case T‑310/97 Netherlands Antilles v Council [1998] ECR II‑455, paragraphs 64 to 65). The balance of the interests involved, as outlined above, means that the Court may substitute its own assessment for that of the Council only in exceptional circumstances requiring a particularly sound prima facie case and clear urgency (see to that effect order in Case T‑350/00 R Free Trade Foods v Commission
[2001] ECR II‑493, paragraph 48, and case-law cited therein).
139. It is within this framework that the cumulative conditions of prima facie case and urgency need to be examined. It is worth examining first whether the applicant has shown that the interim measures are necessary, given that, if this condition were not met in a particularly clear manner, there would be no need to consider in full the existence of a fumus boni juris .
Urgency
140. As a preliminary observation, it must be borne in mind that the urgency of an application for interim relief must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the relief (order in Pfizer Animal Health v Council, cited above, paragraph 94).
141. Particularly where harm depends on the occurrence of a number of factors, it is enough for that harm to be foreseeable with a sufficient degree of probability (see, in particular, orders in Case C‑280/93 R Germany v Council
[1993] ECR I‑3667, paragraph 34, and in Case C‑335/99 P(R) HFB and Others v Commission
[1999] ECR I‑8705, paragraph 67). However, the applicant is still required to prove the facts which are deemed to attest to the probability of serious and irreparable damage (see order in HFB and Others v Commission, paragraph 67, and order in Case C‑278/00 R Greece v Commission
[2000] ECR I‑8787, paragraph 15).
142. It follows that the examination should focus on whether the applicant has demonstrated that it is necessary to order the interim measures requested in order to avoid the three types of damage that it claims will ensue from the application of the Contested Regulation: (i) damage to the marine ecosystem (corals, sea beds etc.) due to the permission of the use of trawling gear and other industrial type gear such as gill nets and long lines; (ii) depletion of deep-sea fish stocks to non-renewable levels due to the intensification of fishing effort; and (iii) collapse of the Azorean fishing industry.
143. Before proceeding with the assessment of each type of damage, it is important to note that there is considerable disagreement between the parties as to the precise date of repeal of the 1995 Regulations, the date on which the Contested Regulation will start producing its alleged effects in Azorean waters without the benefits of the 1995 protective regime. For the purposes of the present proceedings, it is appropriate to consider the effects of the Contested Regulation on the basis that, in any event, the 1995 Regulations will be repealed on 1 August 2004 at the latest. This appears to be the most reasonable interpretation given that Article 15 is a specific provision governing the repeal of the 1995 Regulations. There is no doubt that, by virtue of Article 15 of the Contested Regulation, the 1995 Regulations will cease to be applicable after 1 August 2004 and this forms the basis of the applicant’s argumentation as to the effects of the Contested Regulation on the marine environment, fish stocks and the Azorean fishing industry.
– Serious and irreparable damage to the marine ecosystem
144. The applicant claims that the Contested Regulation will allow fishing effort on an industrial scale and will permit the use of towed gear and other types of industrial gear such as bottom and non-bottom trawling, bottom gill nets and industrial-type longlines which cause serious and irreparable damage to the marine ecosystem by destroying the sea bed, reefs and corals.
145. The applicant claims that under the previous regime of the 1995 Regulations, in particular Articles 3 and 6 and Annex I of Regulation No 685/95, each fishery was defined by reference to type of fishing gear (e.g. towed or fixed gear) and the Council could therefore limit the use of towed gear indirectly by providing, for example, for a zero fishing effort limit in a particular area for a specific type of fishing gear. For the Azorean waters, this was achieved by means of Article 2 and the Annex to Regulation No 2027/95. The Contested Regulation (Article 3 and the Annex thereto) does not define fisheries by fishing gear and, therefore, it will not, in the future, be possible to fix a zero ceiling of maximum fishing effort for towed gear. Moreover, any local prohibitions on the use of such gear are unenforceable to foreign vessels outside a 12nm zone by virtue of Article 10 of Regulation No 2371/2002 so there is no other way to enforce such a prohibition. Given that Article 15 of the Contested Regulation also repeals the 1995 Regulations as of 1 August 2004 at the latest, the result is that use of towed gear will be permitted in Azorean waters.
146. It is acknowledged by all parties that, following the repeal of the 1995 Regulations by virtue of Article 15 of the Contested Regulation, at the latest on 1 August 2004, vessels will be allowed to use bottom trawlers to fish in Azorean waters whereas such activities were precluded under the previous regime.
147. It is also not contested that bottom trawling can have significant negative consequences on the marine ecosystem if such activities are left uncontrolled. Both the Council and the Commission acknowledged, at the hearing, that the effects of bottom trawling can have serious and irreparable consequences by destroying sensitive elements of the marine ecosystem such as coral reefs. In this respect, the Explanatory Memorandum on the Commission’s Proposal on Trawling states that ‘recent scientific reports have shown that certain deep-water habitats [including those of the Azores] are in need of protection against mechanical erosion by fishing gear’. Recital 4 of that Proposal states that ‘according to scientific evidence, recovery from damage to these habitats produced by trawl gear towed through the bottom is either impossible or very difficult and slow’.
148. By contrast to the effects of bottom trawling where there is sufficient evidence before the judge hearing the interim measures action to conclude that the damage which may ensue is of a serious and irreparable nature if such activities are left uncontrolled, no sufficient evidence has been provided that such damage may result from the use of other gear such as non-bottom trawling, gill nets and in particular long-line fishing.
149. The applicant alleges that those other intensive methods of fishing cause collateral damage to fish stocks (for which, however, a fishing effort regime is applicable) but there is no substantiated proof on serious and irreparable damage to the marine environment as such. The expert report submitted by the applicant (Annex 2 to the application) shows that, even though all types of industrial fishing have collateral effects, non-bottom nets and longlines are considered significantly less harmful than bottom trawling with longlines considered to ‘cause limited habitat damage’. The allegations on so-called ghost fishing relate mainly to the preservation of fish stocks and not damage to the environment as such and, in addition, are made in a general manner without data as to the seriousness of the damage or the likely time period within which such damage would become serious and irreparable.
150. The applicant’s references to the Commission’s statements in press releases accompanying the Commission Proposal on Trawling relate to bottom trawling activities or similar gear and cannot be considered as an acknowledgement by that institution of the damaging effects of the use of other types of fishing gear.
151. The applicant’s claims regarding urgency with regard to gear other than bottom trawling and similar towed nets must therefore be rejected.
152. Concerning bottom trawling, however, it is acknowledged by the Council and the Commission that this type of fishing gear is likely to produce serious damage to the marine ecosystem of the Azores if left uncontrolled. Such damage is irreparable in the sense that it is admittedly very difficult or impossible to correct.
153. It is therefore necessary to assess whether the damage will certainly and imminently ensue due to the Contested Regulation in the absence of the requested interim measures. It is for the applicant to prove the facts which are deemed to attest to the probability of serious and irreparable damage (orders in HFB and Others v Commission, cited above, paragraph 67, and in Greece v Commission, cited above, paragraph 15).
154. It should first be observed that, contrary to what the applicant appears to suggest, there is nothing in the Contested Regulation which expressly permits trawling activities or which prevents the Council or the Commission from adopting further measures to combat such activities. Indeed, the Commission’s Proposal on Trawling aims to complement the Contested Regulation by establishing a specific prohibition on trawling in, inter alia, Azorean waters. The Proposal will amend Regulation No 850/98 by adding the following provision in Article 30 of Regulation No 850/98:
‘Vessels shall be prohibited from using any bottom trawl or similar towed nets operating in contact with the bottom of the sea in [inter alia, the Azores].’
155. It follows that a suspension of Articles 3, 5(1), 11 or 13 of the Contested Regulation, which the applicant requests, will not result in a prohibition of bottom trawling in Azorean waters and will thus be of no use to the applicant. It has not been shown that those provisions produce any effects with regard to trawling activities. Therefore, suspension of those provisions is clearly not necessary.
156. Nonetheless, as the applicant itself notes, the authorisation of trawling will take place indirectly through the repeal of the 1995 Regulations which themselves only dealt with the issue in a circuitous rather than a direct way by linking gear to the definition of fishery areas. It is, therefore, only the request for suspension of Article 15 of the Contested Regulation (which repeals the 1995 Regulations) that could have an effect on bottom trawling activities by permitting the regime of the 1995 Regulations, and hence the indirect prohibition on bottom trawling in the Azores, to continue.
157. However, it is difficult to conclude that such an interim measure or an alternative order would be necessary to avoid damage to the marine ecosystem from materialising within the relevant timeframe given that there are several other more proportionate and appropriate avenues, within the context of the Community’s CFP, which can be pursued rapidly and effectively to prevent such damage.
158. Such avenues include, in particular, emergency measures adopted by the Commission or by the Member States, in particular Portugal, on the basis of Articles 7 and 8 of the Base Regulation which permit the adoption of such measures precisely in situations where there is ‘evidence of a serious threat to the conservation of living marine resources or to the marine eco-system resulting from fishing activities and requiring immediate action’. The duration of such measures can be up to three months under Article 8 and up to six months, with the possibility to extend them for another six months, under Article 7 of the Base Regulation. The duration of such measures appears therefore sufficient to avoid damage pending the adoption of the Commission’s Proposal on Trawling which is likely itself to be adopted within a short timeframe. In addition, Article 45(1) and (2) of Regulation No 850/98 allows for the adoption of emergency measures by the Commission or Member States with regard to waters within their jurisdiction ‘where the conservation of stocks of marine organisms calls for immediate action’ or ‘where the conservation of certain species or fishing grounds is seriously threatened, and where any delay would result in damage which would be difficult to repair’.
159. It emerged, at the hearing, that the applicant has taken no action in order to secure any such measures.
160. In addition, at the hearing, the Commission indicated that it constantly surveys the situation and that it is prepared to adopt such emergency measures if necessary.
161. Similar measures have been adopted in the case of the Darwin Mounds in the United Kingdom (Commission Regulation (EC) No 1475/2003 of 20 August 2003 on the protection of deep-sea water coral reefs from the effects of trawling in an area north west of Scotland, OJ 2003 L 211, p. 14). The Commission’s Proposal on Trawling shows that the Commission is aware of the situation and surveys it constantly. The Explanatory Memorandum on the Proposal on Trawling states that ‘the Community fishing zone around the Azores, Madeira and Canary Islands contains several known or potential deep water habitats that have so far been preserved from trawling due to the special access regime defined in Council Regulation (EC) No 2027/95’ and that, ‘[a]s this regime will cease to apply in 2004, it is now important to guarantee a continuity of the protection of these areas as part of Community legislation’. Given the Commission’s awareness of the issues raised, it is clearly unlikely that the Commission would object to the adoption of such measures or that it would fail to intervene to prevent any damage.
162. In such circumstances, where other more appropriate avenues are available to the applicant, the requested interim measures do not appear necessary (see by analogy order in Case C‑87/94 R Commission v Belgium
[1994] ECR I‑1395, paragraphs 40‑42; Free Trade Foods v Commission, cited above, paragraph 59; Case T‑306/01 R Aden and Others v Council and Commission
[2002] ECR II‑2387, paragraph 109, and Case T‑181/02 R Neue Erba Lautex v Commission
[2002] ECR II‑5081, paragraphs 105‑110).
163. In the light of the above, the judge hearing the application for interim measures considers that the applicant has not proven that the interim measures requested are necessary to prevent serious and irreparable damage to the marine ecosystem.
– Damage to fish stocks
164. With regard to serious and irreparable damage to fish stocks, the applicant claims that, as of 1 August 2004 at the latest, the effect of the repeal of the 1995 Regulations and the coming into force of the Contested Regulation will result in a significant intensification of fishing effort which will result in the rapid depletion of deep-sea fish stocks to non-renewable levels.
165. It is important to distinguish between two types of fish stock: tuna and deep-sea fish stock.
166. With regard to tuna and tuna-like species, the applicant has clearly not provided sufficient evidence showing that the interim measures requested are necessary to prevent serious and irreparable damage.
167. Tuna-like species are highly migratory species with a distribution over very large areas and are not linked specifically to Azorean waters. Conservation measures have to cover the whole of the distribution area to reflect the highly migratory area of the species. A measure sealing or liberalising a particular 100nm zone is irrelevant in the context of avoiding depletion of such species given their highly migratory character. Given their migratory nature, tuna and tuna-like species are protected through a variety of measures such as TACs and quotas set for a large area of the North East Atlantic under Regulation No 2287/2003. In addition, tuna and tuna-like species are protected by the International Commission for the Conservation of Atlantic Tunas (ICCAT) to which the Community is a party and catch or effort limitation measures have been adopted for most tuna species. Finally, the applicant’s claim, at the hearing, that boats fishing for tuna extend over a large area and prevent other fishermen from fishing for deep-sea stocks clearly does not support the applicant’s case that tuna stocks or deep-sea stocks will be depleted.
168. As regards deep-sea fish stocks, the matters raised by the applicant are of greater factual complexity. It cannot, however, be concluded that the applicant has proven that, in the absence of interim relief pending resolution of the main action, the Contested Regulation will allow such intensification of fishing effort that fish stocks will be depleted to such an extent as to constitute serious and irreparable damage or that such damage is certain and imminent.
169. It is to be observed that the applicant has not proven that the Contested Regulation will result in a situation permitting unlimited fishing effort in Azorean waters for such species. On the contrary, as the Council, the Commission and Spain point out, the Contested Regulation together with the 2002 Regulations provide a number of measures limiting fishing effort or imposing TACs and quotas with respect to deep-sea species.
170. Thus, as the applicant acknowledges, two deep-sea species (black scabbardfish and red seabream) will be subject to specific TACs and quotas by virtue of Regulation No 2340/2002. A number of deep-sea species listed in Annex I to Regulation No 2347/2002 will be subject to a strict regime for the limitation of fishing effort on a Community-wide basis. This regime includes strict enforcement and control provisions and allows the Commission to closely observe the situation so that further measures can be adopted for any species that are thought to be in danger of over-exploitation. It is to be recalled that Regulation 2347/2002 is not being challenged in the context of the current action.
171. Finally, the Contested Regulation itself sets out a fishing limitation effort regime for all demersal, including all deep-sea species, which are not already under the protective regime of Regulation No 2347/2002. According to Article 3 of the Contested Regulation such limitation of effort is based on historical averages for the years 1998-2002. In essence, therefore, the Contested Regulation will cap fishing effort on that basis.
172. It is to be noted that, contrary to what the applicant assumes, it appears unlikely that the Implementing Regulation envisaged in Article 11 of the Contested Regulation will not have been adopted by 1 August 2004, the specified date for the repeal of the 1995 Regulations. The applicant has expressed fear that such a situation might occur which would lead to a period characterised by a legal lacuna permitting unlimited fishing effort in the relevant area. As noted above, however, the Commission has now adopted a proposal for an Implementing Regulation. The proposal for the Implementing Regulation lays down precise and detailed effort ceilings for each Member State and for each fishing area in the Western Waters based on ICES and CECAF sub-areas on the basis of information received from the Member States permitting the calculation of annual average effort exerted during 1998-2002. The proposal was adopted on 12 March 2004. Article 11 of the Contested Regulation provides for a mechanism whereby, should the Council fail to adopt the Implementing Regulation by 31 May 2004, the Commission can adopt it by 31 July 2004. At the hearing, the Commission confirmed that this mechanism would permit it to adopt the Implementing Regulation by 31 July 2004. In any event, Article 3 of the Contested Regulation imposes effort limitation obligations on Member States even in the absence of an Implementing Regulation. The risk of a legal lacuna is therefore unsubstantiated.
173. The applicant contends, however, that the Contested Regulation and Regulation No 2347/2002 would permit an intensification of fishing effort in Azorean waters given that they fix effort ceilings for large areas going beyond Azorean waters. This, according to the applicant, could permit greater fishing effort exerted within Azorean waters in the 100‑200nm zone. According to the applicant, the great early rewards expected by fishermen due to the virgin nature of the deep-sea fisheries within Azorean waters, makes such intensification of fishing effort in that area likely.
174. The applicant has provided anecdotal evidence on specific fishing expeditions by Spanish vessels showing that intensive long-line fishing resulted in catches of very significant volumes of up to 7% of the total catch of particular species such as alfonsino in a single fishing trip. Similar anecdotal evidence has been provided by Porto de Abrigo to the effect that 58 Spanish vessels (rather than the previous average of 4) are currently fishing in Azorean waters. The applicant has also attempted to show, at the hearing, that industrial gear would enable vessels to cover the majority of Azorean waters in a very short period of time of up to three months.
175. Neither the applicant nor the interveners have, however, produced evidence which permits the judge hearing the application for interim measures action to have a global and accurate view of the alleged scale and timetable of the alleged damage. There is no attempt to calculate how and by what degree fishing effort will be increased in Azorean waters in the light of the caps provided in the 2002 Regulations and the Contested Regulation, and how any intensification of fishing effort will affect the various relevant deep-sea fish species in the period of time pending the resolution of the current dispute by the Court in the main action.
176. The applicant, indeed, acknowledges that it cannot predict exactly when the damage caused by the new regime will become irreparable or exactly when the increased fishing effort will be reduced to non-renewable levels but expects them to be felt within one fishing season and, in any event, within several fishing seasons pending resolution of the main action.
177. However, evidence provided by the applicant suggests that damage to deepwater fisheries in New Zealand is measured in terms of years rather than months. Scientific reports further show that areas of the mid-Atlantic ridge system (of which the Azores form part) outside the Azorean waters have been open to unregulated deepwater fishing for several decades. While this has led to decline of target and by-catch species, apparently there has not been an irreversible collapse of fish stocks. The expert report submitted by the applicant states for example that, although fish stocks have been proven vulnerable to overexploitation, catches in almost every region exploited to date have undergone a rapid boom and bust with initially high landings collapsing within a decade or so of the onset of fishing (Annex 2, p. 2 to 3 to the application).
178. Finally, while fearing irreversible damage of the habitats and referring to the situation being at the border of sustainability, the scientific reports relied upon (in particular, Annex 3 to the application) raise significant uncertainty as to the likely effects of assumed overexploitation. This report (Annex 3 to the application) also reveals that the relevant indicators ‘do not suggest that there are evident problems with the overexploitation of the demersals’, even though they can be considered as intensively exploited. The report adds that for some species there are some inter-annual changes which ‘do not appear solely as a direct consequence of the mortality due to fishery and whose reason is not yet very well known’ (p. 17 of Annex 3 to the application). The report also states that ‘it is not yet completely known what the effects are of the overexploitation of some of these areas, namely the seamounts, because their dynamic is not well explored’ (p. 25 of Annex 3 to the application).
179. In addition to the above considerations, it is necessary to observe that two of the scientific reports (by ICES and STECF, attached as Annexes 20 and 21 to the application), on which the applicant relies to show that depletion of deep-sea stocks is probable, predate the adoption of the 2002 Regulations discussed above. Those Regulations were adopted in the light of the scientific advice contained in those reports in order to take into consideration the evidence provided and to establish a regime limiting fishing effort for deep-sea species thought to be at danger of overexploitation (see Recitals 2 to 4 of Regulation No 2347/2002). In addition, those reports do not present evidence proving that the Contested Regulation or a similar regime would lead to depletion of fish stocks. The reports suggest the adoption of general principles for the sustainable management of fish stocks. The reports do not support a regime based on access limitation rules or exclusive use of TACs and quotas but rather express a preference for fishing effort regimes, advice which the Council has followed in adopting the 2002 Regulations and the Contested Regulation, both aiming at limiting fishing effort.
180. As regards the more recent report by ICES, published on 11 June 2004, the Applicant itself notes, in its application of 21 June 2004, that it raises no new issues of fact or law. The report repeats its 2002 findings and adds some recent developments. While the 2004 ICES report repeats its 2002 concerns to the effect that deep-water species are vulnerable and considered to be harvested unsustainably, it acknowledges that ‘it is currently not possible to provide advice for specific fisheries for deep-sea species’ (p. 82 of the ICES 20034 report).
The report, however, takes into account as a positive development the adoption of more recent regulations (such as the 2002 Regulations) by acknowledging that ‘[i]n the NEAFC regulatory area, effort was recommended to be frozen in 2003 and 2004 and an effort regulation has been implemented in EU deep-sea fisheries’.
It adds that the recent regulations aiming at stabilising or curtailing effort are expected to ‘improve stock status or at least to slow the rate of depletion.
However, their actual effects on the stocks cannot be quantified at present’ (see p. 83 of the ICES 2004 report).
It follows that the recent developments discussed in the 2004 ICES report do not show a deterioration of the previous situation and do not alter the overall picture. In particular, neither the 2004 report nor the 2002 reports provide any evidence as to the effects of the Contested Regulation in Azorean waters that could permit a finding that the interim measures requested are necessary to prevent serious and irreparable damage to fish stocks in that area.
181. It should also be observed that the applicant’s allegation that the Commission essentially recognises that the Contested Regulation will have harmful effects on fish stocks is not correct. The passages quoted by the applicant from the Commission’s press release of 3 February 2004 accompanying the Proposal on Trawling refers exclusively to harmful effects of bottom trawl fishing gears on the marine habitats and not to depletion of fish stocks.
182. Finally, it is important to stress that similar considerations to those outlined above regarding the existence of more appropriate avenues of addressing any concerns about the marine ecosystem are equally relevant in the assessment of urgency relating to depletion of fish stocks.
183. Thus, emergency measures under Articles 7 and 8 of the Base Regulation or Article 45 of Regulation No 850/98 are equally suitable for the conservation of fish stocks. The applicant has made no attempt to pursue such measures and it can be considered that the request for interim relief is therefore not necessary. In addition, it should be observed that Regulation No 2347/2002 establishes a strict monitoring system enabling the Commission and relevant scientific bodies to monitor closely the situation of deep-sea species in particular. The Commission is obliged to report on the overall scheme for managing deep-water species before June 2005 and to propose any necessary amendments to the scheme to the Council.
184. In such circumstances, where other more appropriate avenues are available to the applicant and where the Community institutions monitor closely the relevant situation within the overall context of the CFP, the requested interim measures do not appear necessary (see by analogy orders in Commission v Belgium,
cited above, paragraphs 40‑42, Free Trade Foods v Commission, cited above, Aden and Others v Council and Commission, cited above, paragraph 109, and in Neue Erba Lautex v Commission, cited above, paragraphs 105‑110).
– Damage to the Azorean industry
185. The applicant and Porto de Abrigo have argued that an irreversible depletion of fish stocks would jeopardise the very existence of Azorean fishermen and would cause the total collapse of the Azorean industry. This argument is linked to the argument relating to the depletion of fish stocks which has been disposed of above.
186. In any event, it should be observed that neither the applicant nor Porto de Abrigo have produced sufficient evidence to prove that the Contested Regulation will cause serious and irreparable damage to the Azorean fishing industry, let alone the Azorean economy as a whole, pending the resolution of the main action.
187. Apart from the arguments relating to depletion of fish stocks which have been disposed of above, the applicant does not provide sufficient evidence providing the judge hearing the application for interim measures with a view as to how any intensification of fishing effort by foreign vessels will affect the financial interests of the Azorean fishing industry and in what timescale.
188. On the contrary, it is necessary to consider that the Contested Regulation will still provide for a 100nm zone which will be reserved exclusively for Azorean fishermen for both tuna and deep-sea fish species. Even if, as the applicant submits, 31.4% of the Azorean catch was taken from fishing banks in the 100‑200nm zone, it is by no means shown that, even if this whole amount would now be reserved to foreign vessels, Azorean fishermen’s interests would be irremediably and gravely harmed pending the resolution of the main action. A fortiori, the applicant has not shown that the effects on the Azorean economy as a whole would be of such a nature as to constitute serious and irreparable damage.
189. It follows that the alleged serious and irreparable damage to the Azorean fishing industry remains, for the time being, unsubstantiated.
190. In the light of all the above considerations, the judge hearing the application for interim measures considers that the applicant has not demonstrated to the requisite legal standard that the Contested Regulation will result in serious and irreparable damage to the marine ecosystem, fish stocks or the Azorean fishing industry or that the damage claimed is certain and imminent. As a result it has not been shown that the requested interim measures are necessary and therefore the requisite condition on urgency has not been met.
191. Given that the applicant has failed to show that the interim measures requested are necessary to prevent serious and irreparable damage pending resolution of the main action, it is not necessary to consider whether the condition on fumus boni juris
is met.
192. Finally, as noted at the outset of the present analysis, it should be stressed that, in the light of all the above considerations, the balance of interests in the present case tilts against the applicant.
193. It is evident that a partial suspension of the Contested Regulation would have wide-ranging effects on the Community’s CFP and on third parties, that the requested interim measures are disproportionate in the light of their intended aim and that the adoption of such measures would encroach in a drastic manner upon the wide discretion that the Council enjoys in the field of the CFP. In such circumstances, the Court should only substitute its own assessment for that of the Council in exceptional circumstances requiring a particularly sound prima facie case and clear urgency, which are lacking in the present case (see to that effect order in Free Trade Foods v Commission,
cited above, paragraph 48, and case- law cited therein).
194. The interim measures requested are, in particular, not necessary if one considers that there are other more appropriate and proportionate avenues available such as emergency measures adopted by the Commission or Member States in the context of the CFP and that the applicant has not taken any action in order to secure such measures.
195. In such circumstances, the judge hearing the application for interim measures can consider that the balance of interests tilts against the applicant (see by analogy order in Commission v Belgium,
cited above, paragraphs 40-42, and orders in Free Trade Foods v Commission, cited above, paragraph 59, in Aden and Others v Council and Commission,
cited above, paragraph 109, and in Case T‑181/02 R Neue Erba Lautex v Commission, cited above, paragraphs 105‑110).
196. Since the condition relating to urgency is not satisfied and as the balance of interests inclines in favour of the Council, the present request for interim measures must be dismissed.
Operative part
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Porto de Abrigo, Organização de Produtores da Pesca CRL and GÊ-Questa, Associação de Defesa do Ambiente are granted leave to intervene in support of the forms of order sought by the applicant.
2. The application of WWF – World Wide Fund for Nature and Seas at Risk for leave to intervene is dismissed.
3. The application for interim measures is dismissed.
4. Costs are reserved.