62008CO0444_EN
Parties
Grounds
Operative part
Parties
In Case C‑444/08 P,
APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 7 October 2008,
Região autónoma dos Açores,
represented by M. Renouf and C. Bryant, Solicitors,
appellant,
the other parties to the proceedings being:
Council of the European Union,
represented by J. Monteiro and F. Florindo Gijón, acting as Agents,
defendant at first instance,
Commission of the European Communities, represented by K. Banks, acting as Agent, with an address for service in Luxembourg,
Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,
Seas at Risk VZW, formerly Stichting Seas at Risk Federation, established in Brussels (Belgium),
WWF – World Wide Fund for Nature, established in Gland (Switzerland),
and
Stichting Greenpeace Council, established in Amsterdam (Netherlands),
interveners at first instance,
THE COURT (Seventh Chamber),
composed of R. Silva de Lapuerta, President of Chamber, T. von Danwitz (Rapporteur) and D. Šváby, Judges,
Advocate General: E. Sharpston,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
Grounds
1. By its appeal, the Região autónoma dos Açores asks the Court to set aside the judgment of 1 July 2008 in Case T‑37/04 Região autónoma dos Açores
v Council (‘the judgment under appeal’), in which the Court of First Instance of the European Communities declared inadmissible its action for the annulment of certain provisions 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, modifying Regulation (EEC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95 (OJ 2003 L 289, p. 1) (‘the contested provisions’).
Legal context
Legislation prior to Regulation No 1954/2003
2. Article 1 of 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) provides for the establishment of criteria and procedures for the introduction of a system for the management of fishing effort in various marine areas, including ICES area X and CECAF division 34.2.0 which correspond to the exclusive economic zone of the Azores, which extends up to 200 nautical miles from the baselines of the islands of the archipelago (‘the waters of the Azores’).
3. Annex I to Regulation No 685/95 determines the fisheries by reference to fishing gear, species and marine areas.
4. Paragraph 3 of Annexe III to that regulation relates to tuna fishing and is worded as follows:
‘The access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES area X and Cecaf and that of Portuguese vessels to island waters under the sovereignty or jurisdiction of Spain in Cecaf is excluded, except, where appropriate, in the case of vessels engaging in fishing activities which involve the use of traditional gear under a joint agreement between these two Member States.’
5. Article 1 of 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), as amended by Council Regulation No 149/99 of 19 January 1999 (OJ 1999 L 18, p. 3 and corrigendum OJ 1999 L 234, p. 12) (‘Regulation No 2027/95’) establishes a system for the management of fishery effort in marine areas including those corresponding to the waters of the Azores.
6. As stated in Article 2 of Regulation No 2027/95, the Annex to that regulation fixes the maximum annual fishing effort for each fishery and for each Member State. That annex determines the fisheries according to the three criteria established in Regulation No 685/95. With regard to the demersal and deep-sea species found in the waters of the Azores, it provides that the towed-gear fishing effort is to be zero and allocates the entire fixed-gear fishing effort to the Portuguese Republic.
7. Article 2(a) of 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) states that ‘deep-sea species’ for the purposes of that regulation means fish species included in the list in Annex I to that regulation, which names 24 species.
8. Article 10(a) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59), which is headed ‘Member State measures applicable solely to fishing vessels flying their flag’, provides:
‘Member States may take measures for the conservation and management of stocks in waters under their sovereignty or jurisdiction provided that:
(a) they apply solely to fishing vessels flying the flag of the Member State concerned and registered in the Community …’
Regulation No 1954/2003
9. Regulation No 1954/2003 introduces, following the expiry of the transitional period provided for in the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23), a new fishing effort management system for the Community waters in the North-East Atlantic, which include the waters of the Azores.
10. Article 3(1) of Regulation No 1954/2003, which is headed ‘Measures concerning the catching of demersal species and certain molluscs’, provides:
‘… Member States shall:
(a) assess the levels of fishing effort exerted by vessels equal to or more than 15 metres in length overall, as an annual average of the period 1998 to 2002, in each of the ICES areas and CECAF divisions referred to in Article 1 for demersal fisheries, excluding demersal fisheries … covered by Regulation (EC) No 2347/2002 …, as laid down in the Annex …;
(b) allocate the level of fishing effort assessed conforming to subparagraph (a) in each ICES area or CECAF division, with regard to each of the fisheries mentioned in subparagraph (a).’
11. The first subparagraph of Article 5(1) of Regulation No 1954/2003 provides:
‘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.’
12. Article 11 of Regulation No 1954/2003 lays down the procedure to be followed for the adoption of a regulation fixing the maximum annual fishing effort for each Member State and for each area and fishery defined in Articles 3 and 6 of that regulation.
13. Pursuant to Article 15(1) of Regulation No 1954/2003, Regulations Nos 685/95 and 2027/95 were repealed with effect from 1 August 2004.
14. The Annex to Regulation No 1954/2003 determines the fisheries by reference to species fished and marine area.
The action before the Court of First Instance and the judgment under appeal
15. By application lodged at the Registry of the Court of First Instance on 2 February 2004, the Região autónoma dos Açores brought an action for the partial annulment of Regulation No 1954/2003.
16. By separate document, the Council of the European Union raised a preliminary objection of inadmissibility which was joined to the substance by order of 9 January 2006.
17. By order of the President of the Third Chamber of the Court of First Instance of 21 June 2004, the Commission of the European Communities and the Kingdom of Spain were granted leave to intervene in support of the forms of order sought by the Council. By orders dated, respectively, 16 February and 5 April 2005, the President of the Third Chamber of the Court of First Instance granted the applications for leave to intervene submitted by Seas at Risk VZW, World Wide Fund for Nature and Stichting Greenpeace Council and dismissed the application submitted by Oceana Europa.
18. In the judgment under appeal, the Court of First Instance held that the Região autónoma dos Açores was not individually concerned by the contested provisions and dismissed its action as inadmissible.
19. In reply to the argument put forward by the Região autónoma dos Açores that it was individually concerned by those provisions because, as an outermost region, it is entitled to specific protection under Article 299(2) EC, the Court of First Instance observed, in paragraph 54 of the judgment under appeal, that the protection offered by that provision was not sufficient to establish that the Região autónoma dos Açores was individually concerned by Regulation No 1954/2003 and thus to confer on it standing to bring proceedings under Article 230 EC. The Court of First Instance based that finding, in paragraph 55 of the judgment under appeal, on Case C‑452/98 Nederlandse Antillen
v Council
[2001] ECR I‑8973.
20. As regards the argument put forward by Região autónoma dos Açores to the effect that standing to bring proceedings also stemmed from the fact that Regulation No 1954/2003 would have harmful effects on the specific marine environment of the Azores and, consequently, also on the economy of the Azores region, the Court of First Instance observed, in paragraph 53 of the judgment under appeal, that it was clear from the Community case-law that, under the system established by the Treaties, Member States alone, and not regional authorities or associations, had the right to defend the general interest in their territories. Accordingly, legal persons acting under the fourth paragraph of Article 230 EC, may not, in order to show that they are individually concerned by a Community act, rely only on the consequences of that act on the collectivity or the entirety of its members. The Court of First Instance considered it appropriate, however, to examine whether Regulation No 1954/2003 entailed harmful consequences for the Região autónoma dos Açores and concluded that that was not the case, since the Região autónoma dos Açores had failed, in particular, to show that fishing for deep-sea species in the waters of the Azores had in fact been opened up to non-Portuguese vessels and that the access of Spanish vessels to those waters harmed fish stocks.
21. Further, the Court of First Instance held, in response to a second line of argument advanced by the Região autónoma dos Açores, that the Região autónoma dos Açores had not shown that the contested provisions prevented it from exercising its legislative and executive powers in relation to fishing or compromised its ability to do so. The case-law cited in paragraph 82 of the judgment under appeal did not apply in the case before it and, in any event, the Região autónoma dos Açores did not possess – whether before or after the entry into force of Regulation No 2371/2002 and, in particular, of Article 10 of that regulation – the right to apply its legislation to all vessels fishing in the waters of the Azores.
22. Lastly, the Court of First Instance rejected the argument that the principle of effective judicial protection had been infringed, in the light of the established case-law to the effect that that requirement cannot lead the conditions laid down in the fourth paragraph of Article 230 EC to be set aside.
23. The Court of First Instance concluded that the Região autónoma dos Açores had failed to show that it was individually concerned by the contested provisions, and that there was therefore no need to determine whether it was directly concerned.
Forms of order sought by the parties
24. By its appeal, the Região autónoma dos Açores (‘the appellant’) claims that the Court should:
– set aside the judgment under appeal;
– declare its application in Case T‑37/04 to be admissible;
– annul Articles 3 and 11 of Regulation No 1954/2003, and the Annex thereto, in so far as:
– they provide for the fishing effort under Regulation No 1954/2003 to be determined by reference only to the target species and the ICES area/CECAF division but not also by reference to the type of fishing gear used, whether fixed or towed; and
– they exclude deep-sea species (that is to say, those demersal species covered by Regulation No 2347/2002) from the scope of Articles 3 and 11 of Regulation No 1954/2003;
– annul Article 15 of Regulation No 1954/2003 in so far as the repeal of Regulations Nos 685/95 and 2027/95:
– removes (i) the power of the Community to determine fishing effort by reference not only to target species and ICES area/CECAF division but also by reference to the type of fishing gear used, and (ii) the determination of the fishing effort as effected by Regulation No 2027/95;
– removes (i) the power to determine a maximum annual fishing effort by area in respect of deep-sea species (that is to say, those demersal species covered by Regulation No 2347/2002) and (ii) the determination of the maximum annual fishing effort as effected by Regulation 2027/95; and
– removes the exclusion of access of Spanish vessels to the waters of the Azores for fishing of tuna or tuna-like species;
– annul Article 5(1) of Regulation No 1954/2003 in so far as it does not maintain the exclusion of access of Spanish vessels to the waters of the Azores for fishing of tuna or tuna-like species;
– refer the case back to the Court of First Instance if the Court of Justice does not consider that the state of the proceedings is such as to enable it to give final judgment; and
– order the Council to pay the costs incurred in respect of both the proceedings at first instance and the present appeal.
25. The Council, the Commission and the Kingdom of Spain contend that the Court should dismiss the appeal and order the appellant to pay the costs.
The appeal
26. Under Article 119 of its Rules of Procedure, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal by reasoned order without opening the oral procedure.
27. The appellant relies on seven grounds of appeal. It is appropriate first to examine the second ground, to the effect that the Court of First Instance erred in law by holding that regional authorities did not have the right to defend the general interest in their territories, a ground of appeal which relates to the conditions governing the admissibility of an action for annulment, which are laid down in the second paragraph of Article 230 EC, before examining the other grounds of appeal relating to the question whether the appellant can be regarded as individually concerned under the fourth paragraph of Article 230 EC.
The second ground of appeal
Arguments of the parties
28. By its second ground, the appellant claims that the Court of First Instance was wrong to hold, in paragraph 53 of the judgment under appeal, that only the Member States, and not regional authorities, have the right to defend the general interest in their territories. In the present case, it is necessary to apply that principle less rigidly, since alternative remedies before the national courts and tribunals are not sufficient to protect the interest in question. In that regard, the appellant argues that it is possible to apply by analogy the approach adopted in Case C‑70/88 Parliament
v Council
[1990] ECR I‑2041, since, as regards the determination of standing to bring proceedings, there are similarities between the situation of the Região autónoma dos Açores and that of the European Parliament.
29. According to the Council, the Commission and the Kingdom of Spain, the appellant disregards the clear distinction established by the EC Treaty between the general right to bring proceedings, which is reserved to Member States, and the more restricted right of natural and legal persons who satisfy the conditions laid down in the fourth paragraph of Article 230 EC.
Findings of the Court
30. The appellant claims, in essence, that it must be able to defend the interests of its territory in the same way as a Member State.
31. However, in that regard, it should be observed that, according to settled case‑law, an action brought by a local or regional entity cannot be treated in the same way as an action brought by a Member State, since the term ‘Member State’, for the purposes of the second paragraph of Article 230 EC, refers only to government authorities of the Member States. That term cannot be construed as also covering the governments of regions or other local authorities within Member States without undermining the institutional balance provided for in the Treaty (see the order in Case C‑95/97 Région wallonne
v Commission
[1997] ECR I‑1787, paragraph 6; Nederlandse Antillen
v Council, paragraph 50; and Case‑C 417/04 P Regione Siciliana
v Commission
[2006] ECR I‑3881, paragraph 21).
32. As regards the argument concerning the application by analogy of Parliament
v Council, suffice it to state that the reasoning of the Court, which was based on the notion of the Community’s institutional balance, cannot be extended to a regional body.
33. It follows that the appellant’s standing to bring proceedings can be examined only under the fourth paragraph of Article 230 EC (see, inter alia, Nederlandse Antillen
v Council,
paragraphs 50 and 51, and Regione Siciliana
v Commission, paragraph 24) and that the second ground of appeal is therefore clearly unfounded.
The first ground of appeal
Arguments of the parties
34. By its first ground of appeal, the appellant claims that the Court of First Instance erred in law by holding that the protection granted to the appellant under Article 299(2) EC is not sufficient to establish that it is individually concerned by the contested provisions. Article 299(2) EC requires the Council to take into account each outermost region individually, unlike the provision at issue in Nederlandse Antillen
v Council, relied upon by the Court of First Instance in paragraph 55 of the judgment under appeal. Accordingly, whenever those regions suffer any negative effect whatsoever as a result of a Community measure which fails to respect the prerogatives under Article 299(2) EC, they should be regarded as individually concerned by that measure.
35. The Council and the Commission contend that Article 299(2) EC provides a legal basis which enables the Community legislature to implement a specific policy in relation to certain outermost regions, but that it does not create a derogation, in their favour, from the criteria established in the case‑law relating to the fourth paragraph of Article 230 EC. Furthermore, according to the Commission, the position of the outermost regions is strictly analogous to that of the overseas countries and territories at issue in Nederlandse Antillen
v Council .
Findings of the Court
36. In accordance with settled case-law, the condition – as laid down in the fourth paragraph of Article 230 EC – that natural or legal persons other than those to whom a decision is addressed must be individually concerned by that decision, means that the contested Community measure must affect them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and must, by virtue of those factors, distinguish them individually just as in the case of the person addressed (see, inter alia, Case 25/62 Plaumann
v Commission
[1963] ECR 95, p. 107, and Case C‑260/05 P Sniace
v Commission
[2007] ECR 1‑10005, paragraph 53).
37. According to the appellant, the fact that it is individually concerned by the contested provisions follows from Article 299(2) EC, since that provision requires the Council to take account of each of the outermost regions individually; however, the appellant does not identify the precise provision in Article 299(2) EC from which such protection derives.
38. The appellant does not base its argument on any precise normative element in Article 299(2) EC which could be the source of a right to have its specific situation taken into account (see, to that effect, Case 191/82 Fediol
v Commission
[1983] ECR 2913, paragraph 25), such as a right to be heard in the course of the legislative process (see, inter alia, Case C‑142/95 P Associazione agricoltori della provincia di Rovigo and Others
v Commission and Others
[1996] ECR I‑6669, paragraph 33, and the order in Case C‑355/08 P WWF-UK
v Council
[2009] ECR I‑0000, paragraph 43).
39. However, while the purpose of the fourth subparagraph of Article 299(2) EC is to establish the framework within which the Council, on a proposal from the Commission and after consulting the Parliament, may adopt specific measures laying down the conditions of application of the Treaty to the outermost regions, taking into account the special characteristics and constraints of those regions, the fact remains that the appellant does no more than refer in a general manner to that framework, but does not demonstrate that such taking into account is the source of a specific right which is in itself capable of distinguishing an outermost region in the same way as a person addressed.
40. Moreover, first, the Court of First Instance was correct in stating, in paragraph 55 of the judgment under appeal, that the Court of Justice had implicitly held in Nederlandse Antillen
v Council
that the mere fact that the Treaty contains specific provisions relating to overseas lands and territories does not relieve those lands and territories – specifically, in Nederlandse Antillen
v Council, the Netherlands Antilles – of the obligation to demonstrate that they are directly and individually concerned by the Community measures which they are seeking to have annulled. Secondly, contrary to the assertions of the appellant, the protection granted by Article 299(2) EC is not so different from that stemming from the abovementioned provisions, which means that the Court of First Instance did not err in comparing the situation of the appellant with that of the Netherlands Antilles when considering whether the appellant had standing to bring proceedings.
41. In those circumstances, in the absence of any other information in the application from which it could be concluded that, by virtue of Article 299(2) EC, the appellant was individually concerned by the contested provisions, which had harmful consequences in its territory (see, to that effect, order in Case C‑270/95 P Kik
v Council and Commission
[1996] ECR I‑1987, paragraph 15), the first ground of appeal must be rejected as clearly unfounded.
The third ground of appeal
Arguments of the parties
42. The appellant states, as the first part of the third ground, that the Court of First Instance erred by not making a distinction, in paragraphs 52 and 53 of the judgment under appeal, as regards the effects of the contested provisions, between the harm to the appellant’s economy and the harm to the appellant’s environment. By the second part of this ground, the appellant argues that the uniqueness of the marine environment of the Azores and a consideration of the negative effects of Regulation No 1954/2003 on that environment ought to have led the Court of First Instance to regard the appellant as individually concerned.
43. The Council observes that the appellant is seeking, by such arguments, a fresh assessment of the facts and that this ground of appeal is therefore inadmissible. The Kingdom of Spain and the Commission contend that the environmental considerations set out by the appellant have no bearing on the question whether it has standing to bring proceedings.
Findings of the Court
44. In that regard, it should be borne in mind that no particular factual situation in which the appellant finds itself is alone sufficient to distinguish it for the purposes of the fourth paragraph of Article 230 EC (see, to that effect, Case 97/85 Union Deutsche Lebensmittelwerke and Others
v Commission
[1987] ECR 2265, paragraph 11; the order of the President of the Court in Case C‑300/00 P(R) Federación de Cofradías de Pescadores de Guipúzcoa and Others
v Council
[2000] ECR I‑8797, paragraph 41; and Nederlandse Antillen
v Council, paragraph 72).
45. The assessment made by the Court of First Instance of whether the appellant is individually concerned by the contested provisions is in fact completed in paragraph 56 of the judgment under appeal, independently of the subsequent examination of the harmful effects of those provisions on the fish stocks of the Azores, since that examination was undertaken secondarily and, consequently, included solely for the sake of completeness. A fortiori, the question concerning the nature of the harm purportedly suffered by the appellant can have no bearing on whether the appellant is individually concerned by the provisions which it seeks to have annulled.
46. Since the arguments submitted in support of the first part of the third ground of appeal are directed against grounds of the judgment under appeal which were included solely for the sake of completeness, those arguments cannot, even on the assumption that they are well founded, lead to that judgment being set aside. Consequently, that part of the ground of appeal must be rejected as ineffective (see Case C‑122/01 P T. Port
v Commission
[2003] ECR I‑4261, paragraph 17, and Case C‑273/05 P OHIM
v Celltech
[2007] ECR I‑2883, paragraphs 56 and 57).
47. The complaint put forward in support of the second part of that ground, concerning the particular characteristics of the marine environment of the Azores, is directed against the same grounds of the judgment under appeal, which were included solely for the sake of completeness.
48. Consequently, the third ground of appeal must be rejected in its entirety as ineffective.
The fourth ground of appeal
Arguments of the parties
49. By the first and third parts of this ground of appeal, the appellant asserts, in essence, that Articles 3 and 11 of Regulation No 1954/2003, read together with Article 15 of that regulation, lead to a significantly increased fishing effort in the waters of the Azores. Article 15 repeals (i) Regulation No 2027/95, which fixed an area-specific maximum fishing effort for demersal and deep-sea species, prohibited trawling and prohibited non‑Portuguese vessels from fishing for deep-sea species, and (ii) Regulation No 685/95, which prohibited Spanish vessels from fishing for tuna and tuna-like species in the waters of the Azores. Fishing for deep-sea species was from then on governed by Regulation No 2347/2002, which did not lay down geographical restrictions on the fishing effort.
50. The appellant claims, by the second part of its ground of appeal, that the Court of First Instance distorted the facts and the evidence by stating, in paragraph 61 of the judgment under appeal, that the contested provisions do not have the effect of permitting non‑Portuguese vessels to fish for deep-sea species in the waters of the Azores, since the entire fishing effort for demersal species other than deep-sea species was allocated to the Portuguese Republic under Article 3 of Regulation No 1954/2003 and those species cannot be fished separately.
51. The Council contends that this ground of appeal is inadmissible because it would lead the Court to undertake a new assessment of the facts of the case. The Commission contends, first, that the part of the judgment under appeal which is criticised by this ground of appeal is not essential to its reasoning and, secondly, that the extrapolation made by the Court of First Instance from the evidence before it does not constitute a distortion of the facts or of the evidence.
Findings of the Court
52. It should be recalled that, in accordance with Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal lies on points of law only. The Court of First Instance accordingly has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not – save where they distort the facts or evidence – constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. If the appeal does not raise points of law, it must be dismissed as clearly inadmissible (see, inter alia, Case C‑214/05 P Rossi
v OHIM
[2006] ECR I‑7057, paragraph 26, and the order of 10 July 2009 in Case C‑416/08 P Apple Computer
v OHIM, paragraph 22).
53. However, in order to demonstrate the harmful effects caused by the contested provisions to its marine environment, the appellant puts forward, in support of the first and third parts of its ground of appeal, arguments intended to demonstrate that, in reality, the waters of the Azores have been opened up to fishing for deep-sea and tuna-like species by non‑Portuguese vessels and also to trawling. Thus, the appellant is really doing no more than challenge the assessment of the facts made by the Court of First Instance.
54. In the present case, the appellant is indeed claiming, by the second part of th is fourth ground of appeal, that the Court of First Instance distorted certain facts and evidence, namely those set out in support of the first part of this ground. However, the complaints made in that first part, in addition to seeking a fresh assessment of the facts found by the Court of First Instance, are also directed – taking into consideration the case-law referred to in paragraph 44 of the present order – against reasoning which was included for the sake of completeness, and, as a consequence, are also ineffective. Accordingly, even if it is assumed for the sake of argument that the Court of First Instance clearly distorted the statements made by the appellant and by the Kingdom of Spain on the possibility of fishing separately, in the waters of the Azores, for deep-sea species and other demersal species, the fact remains that such a distortion would have no bearing on whether the appellant can be regarded as individually concerned by the contested provisions. In consequence, such a distortion of the facts would also have no bearing on the question whether the judgment under appeal is well founded (see, to that effect, Case C‑431/07 P Bouygues and Bouygues Télécom
v Commission
[2009] ECR 1‑0000, paragraph 160).
55. The complaints put forward in support of the first and third parts of the fourth ground of appeal must therefore be rejected as clearly inadmissible and those of the second part of this ground of appeal must be rejected as ineffective, pursuant to the case-law referred to in paragraph 46 of the present order.
56. It follows from the foregoing that the fourth ground of appeal must be rejected as being in part clearly inadmissible and in part ineffective.
The fifth ground of appeal
Arguments of the parties
57. By the first part of this ground of appeal, the appellant disputes the conclusion reached by the Court of First Instance, in paragraph 83 of the judgment under appeal, that it was unnecessary to enquire whether the contested provisions prevent it from applying its legislation on fishing for deep-sea species to all vessels fishing in the waters of the Azores, since the appellant had not first demonstrated that the effect of Regulation No 1954/2003 was that non‑Portuguese vessels were permitted to carry out such fishing.
58. By the second part of the fifth ground of appeal, the appellant submits that the Court of First Instance erred in law, in paragraph 84 of the judgment under appeal, by finding that the scope of the appellant’s powers in relation to fishing had not been reduced by Regulation No 1954/2003, even though those powers were the result of the interaction between Article 10 of Regulation No 2371/2002 and Regulation No 2027/95. Inevitably, therefore, the repeal of Regulation No 2027/95 affected the scope of the appellant’s powers.
59. The appellant then claims, by a third part of this ground of appeal, that the Court of First Instance erred in law by finding that its case-law concerning the right of regional authorities to challenge Community measures which prevent them from adopting measures which they might legitimately adopt in the absence of Community intervention – in particular, Joined Cases T‑366/03 and T‑235/04 Land Oberösterreich
v Commission
[2005] ECR II‑4005 – did not apply to the circumstances of the present case. The appellant considers that the application by analogy of the approach adopted by the Court in Case C‑309/89 Codorniu
v Council
[1994] ECR I‑1853 is desirable since, because of its exclusive fisheries management powers, the appellant has a specific right comparable to the right on which the applicant in Codorniu
v Council
was able to rely.
60. The Council states that the fact that an autonomous region is concerned by a Community regulation is the inevitable result of the combination of the effects of Community regulations with the division of competences within Member States, but that such a circumstance cannot confer on that region the status of a person who is individually concerned within the meaning of the fourth paragraph of Article 230 EC. The Kingdom of Spain refers to the fact that Article 10 of Regulation No 2371/2002 authorises Member States only to adopt measures with regard to vessels flying their own flag. Lastly, according to the Commission, it is impossible to apply by analogy the approach adopted by the Court of First Instance in Land Oberösterreich
v Commission, in which Land Oberösterreich was held to be individually concerned by a Community measure preventing it from exercising, as it saw fit, its own powers as conferred on it by the national constitution. The appellant does not identify any measure which it has been prevented from adopting. The Commission offers the same argument in rebuttal of the argument that Cordoniu
v Council
should be applied by analogy.
Findings of the Court
61. By way of preliminary remark, as regards the first part of this ground, suffice it to state that it is related to the first part of the fourth ground of appeal and that a separate examination is therefore unnecessary.
62. Next, as regards the second part of this ground of appeal, to the effect that the Court of First Instance was wrong in holding that the scope of measures adopted by the appellant for the management of fisheries in the waters of the Azores had not been reduced by the contested provisions – since, prior to the entry into force of the contested provisions, the appellant had, on the basis of Article 10 of Regulation No 2371/2002 read in conjunction with Regulation No 2027/95, the right to apply its legislation to all vessels fishing in the waters of the Azores – it is clear that the last-mentioned provisions of Community law do not in fact confer any powers on the appellant, since the sole addressees of those regulations are the Member States. As the appellant acknowledges elsewhere in its application, the powers to which it refers derive from rules from within the Portuguese legal system.
63. It is common ground that national constitutional rules which confer powers cannot determine the standing of regional bodies to bring proceedings (see, to that effect, the order in Région wallonne
v Commission, paragraph 6; the order in Case C‑180/97 Regione Toscana
v Commission
[1997] ECR I‑5245, paragraph 6; and Case C‑15/06 P Regione Siciliana
v Commission
[2007] ECR I‑2591, paragraph 35).
64. Moreover, to the extent that the appellant claims that the effect of the contested provisions is, in practice, to prevent it from applying its fisheries management measures to all vessels, in that those provisions open up fishing in the waters of the Azores to non-Portuguese vessels, it is sufficient to point out, in the light of the case‑law referred to in paragraph 44 of this order, that a factual situation is not by itself capable of distinguishing an applicant.
65. As regards, lastly, the arguments put forward in support of the third part of the fifth ground of appeal, suffice it to state that, in the light of the case-law referred to in paragraph 63 of the present order and the actual circumstances of the present case, the case-law of the Court of First Instance relating to actions brought by regional entities in relation to State aid, as relied upon by the appellant, is not applicable to the present case. As the Court of First Instance correctly found in paragraph 82 of the judgment under appeal, the appellant does not refer to any specific legislative measure, within the scope of its own powers, the validity of which has been called into question by the contested provisions.
66. Moreover, the argument for the application of the approach adopted by the Court in Codorniu
v Council is irrelevant, since the appellant does not – as determined in paragraphs 38 and 39 of the present order – possess any right to have its particular situation taken into account.
67. The fifth ground of appeal must therefore be rejected in its entirety as clearly unfounded.
The sixth ground of appeal
Arguments of the parties
68. By its sixth ground of appeal, the appellant claims that, since it is unable to bring an action before the national courts in order to ask them to make a reference to the Court for a preliminary ruling, an action for annulment is the only effective legal remedy. The Court of First Instance therefore erred in law by not considering the absence of other effective legal remedies to be a factual situation which distinguishes the appellant from other persons in the same way as the person to whom a Community measure is addressed.
69. The Council and the Kingdom of Spain contend, in that regard, that the absence of an effective legal remedy is not a criterion on the basis of which it is possible to establish individual concern.
Findings of the Court
70. It is sufficient, in the present case, to recall the settled case-law to the effect that the conditions for admissibility of an action for annulment cannot be set aside on the basis of the appellant’s interpretation of the right to effective judicial protection (see, inter alia, Case C‑50/00 P Unión de Pequeños Agricultores
v Council
[2002] ECR I‑6677, paragraphs 43 and 44, and Sniace
v Commission, paragraph 64).
71. It follows from that case-law that the appellant’s argument that the right to effective judicial protection should by itself enable it to bring an action for annulment must be rejected. The conditions of admissibility of an action for annulment must be satisfied even if, as the appellant maintains in the present case, it has no possibility of bringing an action before the national courts (order of 13 March 2007 in Case C‑150/06 P Arizona Chemical and Others
v Commission, paragraph 41).
72. It is clear from consideration of the arguments set out in relation to the first five grounds of appeal that the appellant has not demonstrated that it was individually concerned by the contested provisions. Consequently, the sixth ground of appeal must be rejected as clearly unfounded.
The seventh ground of appeal
Arguments of the parties
73. According to the appellant, the Court of First Instance erred by failing – contrary to the precepts set out by the Court in Plaumann
v Commission
– to consider the cumulative effect of the various factors relied upon by the appellant in order to establish that it was individually concerned by the contested provisions which it seeks to have annulled.
74. The Council and the Kingdom of Spain contend that the appellant has not shown how a cumulative consideration of the various factors in question would have altered the assessment made by the Court of First Instance.
Findings of the Court
75. It must be stated that the appellant’s argument is based on an interpretation of Plaumann v Commission which is plainly incorrect. It is clear from settled case-law that the Court distinguishes two cumulative criteria governing the admissibility of actions for annulment brought by a natural or legal person – that is to say, such a person must be both individually concerned and directly concerned (see Plaumann
v Commission, p. 107, and Joined Cases C‑445/07 P and C‑455/07 P Commission
v Ente per le Ville vesuviane
[2009] ECR I‑0000, paragraph 45) – but that is not equivalent to stating that it is necessary to consider cumulatively the various factors relied on by an applicant in order to demonstrate that one of those criteria has been met.
76. Consequently, the present ground of appeal must also be rejected as clearly unfounded.
77. It follows from all of the foregoing that the appeal must, pursuant to Article 119 of the Rules of Procedure, be dismissed in its entirety.
Costs
78. Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the pleadings of the successful party. Since the Council has applied for costs and since the grounds of appeal relied upon by the appellant have been unsuccessful, the appellant must be ordered to pay the costs.
79. Under the first subparagraph of Article 69(4) of the Rules of Procedure, also applicable by virtue of Article 118 thereof, Member States and institutions which intervene in the proceedings are to bear their own costs. Accordingly, the Kingdom of Spain and the Commission must be ordered to bear their own costs.
Operative part
On those grounds, the Court (Seventh Chamber) hereby orders:
1. The appeal is dismissed.
2. The Região autónoma dos Açores shall pay the costs.
3. The Kingdom of Spain and the Commission of the European Communities shall bear their own costs.