Opinion of Mr Advocate General Mischo delivered on 28 October 1987. - Asociación provincial de Armadores de buques de pesca de Gran Sol de Pontevedra (Arposol) v Council of the European Communities. - Admissibility - Regulation on penalties for failure to comply with the provisions concerning fishing of the Act of Accession of Spain and Portugal to the European Communities. - Case 55/86.



European Court reports 1988 Page 00013



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The Council has raised an objection of inadmissibility under Article 91 ( 1 ) of the Rules of Procedure of the Court of Justice with respect to an action commenced on 26 February 1986 by the Asociacion Provincial de Armadores de Buques de Pesca de Gran Sol de Pontevedra ( hereinafter referred to as Arposol ) for the annulment of Council Regulation ( EEC ) No 3781/85 of 31 December 1985 laying down the measures to be taken in respect of operators who do not comply with certain provisions relating to fishing contained in the Act of Accession of Spain and Portugal ( Official Journal 1985, L 363, p . 26 ).

2 . Article 1 of that regulation states that it "lays down the measures intended to ensure compliance with the rules on access to waters and resources contained in Articles 163, 164, 165, 349, 351 and 352 of the Act of Accession by fishing vessels flying the flag of a Member State or registered in a Member State ".

3 . Those measures and the rules with which they are intended to ensure compliance are set out in a detailed manner in the Report for the Hearing .

4 . The Council, supported by the Commission, the intervener, considers that the contested regulation is a true regulation, general in its scope and of a legislative character, so that under the second paragraph of Article 173 a natural or legal person has no standing to bring proceedings for its annulment . In support of its argument the Council stresses in particular the fact that Regulation No 3781/85 applies not simply to the situation of Spanish fishermen but also, in an identical manner, to Portuguese fishermen and fishermen from Member States of the Community of Ten .

5 . The applicant replies by stressing the limited and specific number of vessels capable of being affected by the penalties provided : about 1 268 out of the 76 813 vessels making up the fishing fleet of the 12 Member States of the Community . In particular, with regard to non-specialized fishing, only 300 Spanish vessels, specified by name in the basic list provided for by Article 158 ( 1 ) of the Act of Accession and set out in Annex IX to that Act, may be affected by the regulation in issue since they are the only ones which are capable of being authorized to fish in the fishing zones in question . The 57 vessels represented by Arposol appear in that basic list .

6 . Before examining whether Regulation No 3781/85 is of direct and individual concern to those vessels I should like to make the following observations on this point .

7 . In essence Arposol challenges the fact that the vessels which it represents may be penalized by not being entered on the periodical lists of vessels authorized to fish at the same time during a given period . To that end Arposol essentially alleges a breach of the principle of equal treatment and certain rules of criminal law ( the right to a fair hearing and the principle non bis in idem ).

8 . The real subject-matter of Arposol' s action, therefore, is the very system of periodical lists and the possibility that a boat which engages in fishing without appearing on the list may thereafter not be entered on that list for a certain number of months .

9 . However, the essence of the scheme appears not in an "Act of the Council" within the meaning of Article 173 of the Treaty but in the Act of Accession, which is an international treaty and cannot be challenged before this Court .

10 . That means that if the vessels affiliated to Arposol must be regarded as directly and individually affected simply because they appear in the basic list of 300 vessels, the fact that they are singled out in that manner flows from Article 158 of the Act of Accession and not from the contested regulation .

11 . Furthermore, as regards the fishing activities of Spanish vessels in the waters of the Member States of the Community of Ten, the first subparagraph of Article 163 ( 3 ) of the Act of Accession provided for the possibility of not authorizing a vessel to fish for a certain period in order to ensure compliance with the rules laid down by other provision of that Act . Regulation No 3781/85 merely sets out detailed measures for implementing that rule .

12 . However, it is possible that the Court may prefer to overlook that aspect and analyse whether the action is admissible solely in relation to the act whose annulment is formally requested . In that respect, I should like to make the following remarks .

13 . Even supposing that Arposol can be regarded as simply the spokesman for the individual interests of each of its members ( those interests being identical for all of them ) the association' s action is admissible only if each of the members concerned is directly and individually affected by the regulation under challenge .

14 . That is the question with which I should like to deal now . However, I shall refrain from repeating the Council' s argument ( with which I agree ) to the effect that Regulation No 3781/85 relates generally to fishing relations between Spain, Portugal and the Member States of the Community of Ten and cannot therefore be of individual concern to vessel-owners in whose name the action has been brought . For myself, I wish to concentrate on the provisions relied on by Arposol, that is to say the rules flowing directly from Article 158 of the Act of Accession which govern the non-specialized fishing activities of Spanish vessels in waters falling under the sovereignty or within the jurisidiction of the Member States of the Community of Ten .

15 . Since we are dealing with a situation extremely similar to that which gave rise to the Court' s judgment of 16 March 1978 in Case 123/77 Unicme and Others v Council (( 1978 )) ECR 845, I shall base myself on the logical structure of that judgment, in particular as set out in paragraphs 8 to 20 .

16 . It must first be noted that it cannot be determined from an examination of the contested regulation itself whether or not one of the vessels covered by Arposol will be affected by the penalties provided for .

17 . The system established by that regulation can only affect the interests of the owners, charterers or operators of the vessels in question if the penalty of non-inclusion in the drafts of the periodical lists is in fact imposed on them .

18 . Article 2 of Regulation No 3781/85 provides that before that can happen :

( i ) the vessel concerned must not have been entered in the periodical list during a given month;

( ii ) it must nevertheless have engaged in fishing;

( iii ) it must have been caught in the act;

( iv ) the competent authorities of the Member State in whose waters the infringement was committed must have recorded the infringement and notified the Commission and the flag Member State of any penal, administrative or other measures taken and any Court decision relating to such infringement . ( 1 )

19 . Finally, under Article 163 ( 2 ) of the Act of Accession drafts of periodical lists must be submitted to the Commission for its approval .

20 . It is thus apparent that the penalty of not entering a vessel on the periodical lists may only be imposed by the authorities of the flag Member State after a procedure which necessitates the intervention of several authorities of other Member States and that it does not become final until the Commission has approved the lists .

21 . Since several other conditions must be fulfilled before the application of the contested regulation can cause harm to the vessels represented by Arposol, those vessels cannot be regarded as being directly affected by the regulation .

22 . Furthermore, as the President of the Court noted in his order of 22 April 1986 on the application for interim measures, in the event of exclusion from the periodical list

"it is possible at both national and Community level to challenge the periodical list" ( paragraph 19 ).

23 . In proceedings for that purpose a vessel-owner will challenge the legality of Regulation No 3781/85 either before the Court of Justice or before a national court; the latter will then have the opportunity of referring a question to the Court of Justice for a preliminary ruling in that respect . If necessary the operator can also seek redress for the harm caused by any illegality .

24 . Finally, the Court has consistently held that "the possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them ". ( 2 )

25 . In this case the fact that all the vessels represented by Arposol are potentially capable of being dropped from the periodical lists pursuant to Articles 3 and 4 of Regulation No 3781/85 does not mean that that regulation must be regarded as being of individual concern to them in the same way as a decision is to the person to whom it is addressed .

26 . First of all, the regulation only has effects on individuals when it is applied by the Spanish authorities, that is to say when they draw up drafts of periodical lists to be submitted to the Commission which exclude the offending vessels .

27 . Secondly, the basic list has not been drawn up once and for all . If in the future another vessel were to be included in the basic list as a replacement for a vessel no longer in use and removed from the list, as provided for by Article 159 ( 2 ) of the Act of Accession, and if it were subsequently to feature on a periodical list, it would be subject to the system established by the contested regulation on the same basis as vessels which had always been on the list .

28 . It cannot therefore be said that the legal position of the vessels represented by Arposol is affected "because of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as a person to which it is addressed ". ( 3 )

29 . Consequently Regulation No 3781/85 is not of individual concern to them; that is so even if one only takes into consideration ( as I have done ) the situation of the Spanish fishermen engaged in non-specialized fishing in the waters of the Member States of the Community of Ten .

30 . I would therefore propose that the Court should dismiss the action brought by Arposol as inadmissible and order the applicant to pay the costs of the case, including the costs of the application for interim measures .

(*) Translated from the French .

( 1 ) The Member States are obliged to take such action under Article 12 of Council Regulation ( EEC ) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States ( Official Journal 1982, L 220, p . 1 ) as amended by Council Regulation ( EEC ) No 3723/85 of 20 December 1985 ( Official Journal 1985, L 361, p . 42 ).

( 2 ) See the Unicme judgment, supra, at paragraph 16; see also the judgment of 24 February 1987 in Case 26/86 Deutz und Geldermann v Council (( 1987 )) ECR 941, at paragraph 17 .

( 3 ) See in particular the judgment of 24 February 1987 in Case 26/86 Deutz und Geldermann v Council (( 1987 )), cited above, at paragraph 9 .