OPINION OF ADVOCATE GENERAL

KOKOTT

of 13 July 2006 1( )

Case C-34/04

Commission of the European Communities

v

Kingdom of the Netherlands

and

Case C-64/04

Commission of the European Communities

v

United Kingdom of Great Britain and Northern Ireland

(Common fisheries policy – Restructuring of the fisheries sector –Fishing licences – Definitive transfer to Argentina)

I – Introduction

1. In 1996, two vessels each from the Netherlands fishing fleet and the United Kingdom fishing fleet were transferred to Argentina. The Community supported these measures with a total of ECU 7 464 585.60. In the opinion of the Commission, however, these aids have not fulfilled their purpose, as the defendant Member States have licensed new vessels for fishing in the place of the vessels transferred. It has therefore brought these two sets of proceedings for breach of treaty obligations, which are legally essentially the same. As I will demonstrate below, however, the Commission has relied on the wrong legal basis.

II – Legal background

2. In order to be permitted to fish, fishing vessels require a fishing licence, which is attached to the vessel. Community law first made provision for such a licence in Article 5 of Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture ( ) (‘the Fisheries Regulation’):

‘(1) The Council, acting in accordance with the procedure laid down in Article 43 of Treaty, shall, before 31 December 1993, establish a Community system which shall apply from a date no later than 1 January 1995 laying down rules for the minimum information to be contained in fishing licences, to be issued and managed by Member States.

From the date of application of the Community system, Member States shall be required to operate national systems of fishing licences. Except where otherwise provided, all Community fishing vessels shall be required to have a fishing licence, which is attached to the vessel.

The above provisions shall apply without prejudice to any specific system which may be in force at the Community level or those required under present and future international agreements.

(2) The licensing system shall apply to all Community fishing vessels in the Community fishing waters or operating in the waters of third countries or on the high seas. The Community minimum information requirements shall also apply to third country vessels fishing in Community fishing waters where provided for under international agreements’.

3. Fishing licences attached to vessels are regulated in more detail by Council Regulation (EC) No 3690/93 of 20 December 1993 establishing a Community system laying down rules for the minimum information to be contained in fishing licences ( ) (‘the Minimum Information Regulation’). The relevant provisions read as follows:

‘Article 1

(1) A Community system of fishing licences shall be established laying down rules on the minimum information to be contained in the fishing licences referred to in Article 5 of Regulation (EEC) No 3760/92.

(2) All Community fishing vessels shall be required to have a fishing licence for the vessel.

(3) The licence must be kept on board the vessel.

(4) Fishing vessels shall be forbidden to catch, retain on board, transfer or land fish where a fishing licence has not been granted or where the fishing licence has been withdrawn or suspended.

…

Article 3

The flag Member State shall issue and administer fishing licences for the fishing vessels flying its flag, having due regard to the provisions of Article 11 of Regulation (EEC) No 3760/92.

…

Article 5

The flag Member State shall suspend temporarily or definitively the fishing licences of vessels which are subject to temporary immobilisation and shall withdraw the fishing licences of vessels which are subject to definitive withdrawal from fishing activities.’

4. Article 11 of the Fisheries Regulation, referred to in Article 3 of the Minimum Information Regulation, placed on the Council the duty of laying down the objectives of the restructuring of the Community fishing fleet:

‘Having regard to Title I, on a multiannual basis and for the first time not later than 1 January 1994, the Council, acting in accordance with the procedure laid down in Article 43 of the Treaty, shall set the objectives and detailed rules for restructuring the Community fisheries sector with a view to achieving a balance on a sustainable basis between resources and their exploitation. Such restructuring shall also take account on a case-by-case basis of possible economic and social consequences and of the specificities of the fisheries regions.’

5. In accordance with that provision, the Council adopted its Decision of 20 December 1993 relating to the objectives and detailed rules for restructuring the Community fisheries sector over the period 1 January 1994 to 31 December 1996 ( ) with a view to achieving a lasting balance between the resources and their exploitation (‘the Restructuring Decision’). It reads:

‘Article 1

(1) By 31 December 1996 at the latest, and taking into account the objectives fixed in the transitional guidance programmes for 31 December 1991, the fishing effort of the fleet of each Community Member State must have decreased by:

– 20% for trawlers bottom trawling for demersal stocks,

– 15% for dredgers and beam trawlers targeting benthic stocks,

– 0% i.e. no increase for the other segments of fleet.

(2) At least 55% of the required effort reductions must be purely by capacity reductions.

Article 2

The implementation of the objectives and procedures referred to in Article 1 shall be ensured by the Commission under the multiannual guideline plans for the Member States’ fishing fleets as approved by the Commission Decisions of 21 December 1992 and possibly amended within the framework of the same procedure.’

6. The specific targets during the relevant period are set for the Netherlands in the Commission Decision of 21 December 1992 on a multiannual guidance programme for the fishing fleet of the Netherlands for the period 1993 to 1996 pursuant to Council Regulation (EEC) No 4028/86 ( ) and for the United Kingdom in the Commission Decision of 21 December 1992 on a multiannual guidance programme for the fishing fleet of the United Kingdom for the period 1993 to 1996 pursuant to Council Regulation (EEC) No 4028/86 ( ).

7. Provisions on the means of attaining those targets are contained in Council Regulation (EC) No 3699/93 of 21 December 1993 laying down the criteria and arrangements regarding Community structural assistance in the fisheries and aquaculture sector and the processing and marketing of its products ( ) (‘the Structural Measures Regulation’). The relevant articles in these cases are Articles 7 to 9.

‘Article 7 Common Provisions

(1) At the end of a multiannual guidance programme, where, with regard to a given segment of a Member State’s fleet, the reductions in capacity financed by official aid lead to overachievement of the objectives for that segment, the new situation brought about solely as a result of that aid may not be invoked to bring into service new capacity.

…

(2) …

Article 8 Adjustment of fishing effort

(1) Member States shall take measures to adjust fishing effort to achieve at least the objectives of the multiannual guidance programmes referred to in Article 5.

Where necessary, Member States shall take measures to stop vessels’ fishing activities permanently or restrict them.

(2) Measures to stop vessels’ fishing activities permanently may include

– scrapping;

– permanent transfer to a third country, provided such transfer is not likely to infringe international law or affect the conservation and management of marine resources;

– permanent re-assignment of the vessel in question to uses other than fishing in Community waters.

…

Member States shall ensure that vessels concerned by such measures are deleted from the registration lists for fishing vessels and from the Community fishing vessel register. They shall also ensure that deleted vessels are permanently excluded from fishing in Community waters.

(3) …

8. The transfer of the vessels in these cases, however, was not made directly on the basis of the Structural Measures Regulation but on the basis of the Agreement on relations in the sea fisheries sector between the European Economic Community and the Argentine Republic of 24 May 1994.( )

9. The ninth recital in the preamble states:

‘CONVINCED that this new type of cooperation in the fisheries sector will provide regular access to new fishing opportunities, further the aims of renewing and converting the Argentine fleet and restructuring the Community fleet and promote the rational exploitation of resources in the long term.’

10. The relevant provisions of Article 5 of the Agreement state:

‘(1) The Parties shall create suitable conditions for the establishment in Argentina of undertakings using capital originating in one or more Member States of the Community and the creation of joint enterprises and joint ventures in the fisheries sector between Argentinian and Community shipowners with the aim of jointly exploiting and, where appropriate, jointly processing Argentinian fishery resources under the conditions laid down in Protocol I and Annexes I and II.

(2) …

(3) As part of its policy for the restructuring of its fleet, the Community shall facilitate the inclusion of Community vessels in undertakings established or to be established in Argentina. ...’

11. Support by the Community is provided for in Article 7(1) of the Agreement:

‘(1) In order to encourage the establishment of the undertakings provided for in Article 5, the projects selected by the Parties pursuant to Article 6 shall be eligible for financial assistance in accordance with Protocol I.’

III – Facts and pleadings

Case C-34/04 – Commission v Netherlands

12. The proceedings against the Netherlands concern the transfer of two vessels, the Wiron III and the Wiron IV, to a joint enterprise under the Agreement with Argentina. The vessels were transferred in July 1996. The Commission granted assistance in a decision of 16 December 1996 addressed to the Netherlands, the owners of the vessels and the joint enterprise. In relation to each vessel, it amounted to ECU 1 852 236 for the former owners and ECU 277 835.40 for the joint enterprise.

13. The Netherlands then issued new licences for other vessels, which took the place of the two transferred vessels in the register of fishing vessels.

14. The Commission claims that the Court should:

(1) declare that, by failing to withdraw the fishing licences granted to the fishing vessels Wiron III and Wiron IV following the definitive transfer of those vessels to Argentina, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 5 of Regulation (EC) No 3690/93 of 20 December 1993 establishing a Community system laying down rules for the minimum information to be contained in fishing licences;

(2) order the Kingdom of the Netherlands to pay the costs.

15. The Kingdom of the Netherlands contends that the Court should:

(1) dismiss the Commission’s application, and

(2) order the Commission to pay the costs.

Case C-64/04 – Commission v United Kingdom

16. The background to the proceedings against the United Kingdom is as follows: In the second half of 1996, the owners of the vessels Cleopatra and Ocean Quest applied to the Ministry of Agriculture, Fisheries and Food of the United Kingdom for Community assistance under the Agreement with Argentina for the transfer of those vessels to a joint enterprise. The Ministry passed those applications on to the Commission. In doing so, it stated that the vessels were selected in order to reduce the fishing effort in the North Sea.

17. The vessel owners then transferred the fishing licences of the vessels for consideration to third parties. Under United Kingdom law, the latter acquired the right to the issuing of a corresponding fishing licence for a fishing vessel.

18. When the competent United Kingdom authorities learned of the transfer of the licences, they enquired of the Commission whether that was permissible. The Commission authorities replied that it was not.

19. The Commission nevertheless issued a decision on 16 December 1996, addressed to the United Kingdom, the original vessel owners and the relevant joint enterprises, granting Community assistance. In the case of the Cleopatra, ECU 1 469 592 went to the vessel owners and ECU 220 438.80 to the joint enterprise. In the case of the Ocean Quest, the assistance amounted to ECU 1 316 880 and ECU 197 532.

20. Although the competent United Kingdom authorities again referred to the transfer of the licences, these funds were actually disbursed.

21. The Commission claims in Case C-64/04 that the Court should:

(1) declare that the United Kingdom, by having failed to withdraw the fishing licences of the fishing vessels known as CLEOPATRA and OCEAN QUEST after their permanent transfer to Argentina, has breached Article 5 of Regulation (EC) 3690/93 of 20 December 1993 establishing a Community system laying down rules for the minimum information to be contained in fishing licences;

(2) order the United Kingdom to pay the costs.

22. The United Kingdom contends that the Court should dismiss the Commission’s application and order the Commission to pay the costs.

IV – Legal assessment

23. In each set of proceedings, the Commission complains that, after the permanent transfer of the vessels, the Member State in question failed to withdraw their fishing licences.

A – Article 5 of the Minimum Information Regulation

24. The Commission bases its complaint on Article 5 of the Minimum Information Regulation. According to that provision, the flag Member State is to suspend temporarily or definitively the fishing licences of vessels which are subject to temporary immobilisation and to withdraw the fishing licences of vessels which are subject to definitive withdrawal from fishing activities. It therefore needs first to be determined whether the vessels have been immobilised within the meaning of that provision, and, if they have, whether the relevant Member State has withdrawn their fishing licences.

1. Immobilisation

25. The vessels at issue in these proceedings, in the proceedings against the Netherlands the Wiron III and the Wiron IV, and in those against the United Kingdom the Ocean Quest and the Cleopatra, were removed, with Community assistance, from the fishing fleets of the Netherlands and the United Kingdom respectively and transferred to the Argentine fishing fleet.

26. As the vessels continued to be used for fishing, immobilisation appears at first sight to be excluded. However, Article 8 of the Structural Measures Regulation makes clear that the permanent transfer of a fishing vessel to a third country is also a case of immobilisation. That is because fishing vessels that have been definitively removed no longer form part of the Community fleet.

27. Although the Netherlands Government disputes the applicability of Article 8 of the Structural Measures Regulation to the transfer of vessels under the Agreement with Argentina, it would be wrong, for the purposes of licensing, not to treat such transfer as a definitive immobilisation. Without withdrawal of the licences, it would be possible for these vessels, like vessels of the Community, to fish in Community waters or on Community quotas.

28. Moreover, the transfer of vessels to Argentina in accordance with Article 5(3) of the Agreement, and the ninth recital in its preamble, is intended inter alia to promote restructuring of the Community fleet. As a result, general rules on restructuring measures are applicable either directly or by analogy to the transfer of vessels to Argentina. ( ) To what extent particular rules of the Agreement exclude the rules of the Restructuring Regulation ( ) need not be determined here, since the Agreement does not in any case determine whether the transfer of vessels to Argentina is to be treated as definitive immobilisation or not.

29. It follows that the fishing licences of the transferred vessels had to be withdrawn in accordance with Article 5 of the Minimum Information Regulation.

2. Withdrawal of the licences

30. The parties – including the Commission – are agreed that the transferred vessels no longer have fishing licences.

31. According to information supplied by the Netherlands Government, the licences of the Netherlands vessels were automatically withdrawn by operation of statute. All that had happened was that the vacated places in the Netherlands vessels register had been allocated to new vessels and new fishing licences were issued to them.

32. The United Kingdom states that the owners of the licences sold them to third parties, who used them for other vessels. When the vessels finally left the British fleet, they therefore no longer had any licences which could be withdrawn.

33. This statement appears at first sight to be irreconcilable with the principle that licences attach to vessels. According to Article 5(1), second subparagraph, of the Fisheries Regulation, all fishing vessels of the Community must have a licence, which is attached to the vessel.

34. In reality, however, according to information from the United Kingdom and the Commission, it is not the licences themselves that are traded but ‘licence entitlements’. The actual licence can be issued only if the applicant has such an entitlement. That appears to have happened in this case on the basis of the sold entitlements.

35. The circumstances required by Article 5 of the Minimum Information Regulation therefore appear to have been met: the transferred vessels no longer have fishing licences.

3. The replacement of the licences of the transferred vessels

36. The actual complaint of the Commission is, however, that the Netherlands and the United Kingdom issued new licences for other fishing vessels, which corresponded to the licences of the vessels which were transferred to fleet of a third State with Community assistance. The Commission therefore objects that the transferred capacities were replaced, in that new vessels took the place of the transferred vessels.

37. Under present law, this is unambiguously governed by Article 11(3) of Regulation No 2371/2002 ( ): Subsidies are not granted until after withdrawal of the licence. Nor can that licence be replaced. However, there was no such express provision at the relevant time in this case.

38. The Commission argues that, even without such an express provision, Article 5 of the Minimum Information Regulation required withdrawal of the fishing licence without replacement. ( ) The United Kingdom accepts that interpretation. The Netherlands rejects it.

39. According to its wording, Article 5 of the Minimum Information Regulation does not contain provision for the issuing of replacement licences for withdrawn fishing licences. On the contrary, it is exclusively concerned with the withdrawal of licences.

40. The Commission is therefore trying to infer a prohibition on the issuing of replacement licences from the objectives of the restructuring measures under Article 8 of the Restructuring Regulation and particularly from the objectives of supporting a transfer of vessels to Argentina.

41. Since the transfer of vessels to Argentina under the Agreement with that State is designed to promote restructuring of the Community fleet, it is aimed at reducing the fishing capacities of the Community. A reduction is obstructed if new vessels are licensed in the place of those transferred.

42. The Commission is therefore right to the extent that the issuing of replacement licences in the event of the subsidised transfer of fishing vessels prejudices the objectives of the subsidy.

43. The fact that the objectives of the subsidy are prejudiced does not, however, in itself permit the conclusion that the issuing of replacement licences infringes Article 5 of the Minimum Information Regulation, either on its own or in conjunction with Article 8 of the Structural Measures Regulation.

44. Neither of those two provisions contains the slightest suggestion of a provision which would secure those objectives by prohibiting the replacement of withdrawn fishing licences. Article 8 of the Structural Measures Regulation does not even mention fishing licences. Article 5 of the Minimum Information Regulation contains only the obligation to withdraw the fishing licence of a particular vessel. That obligation is fulfilled with the withdrawal of that licence. The circumstances in which new licences may be issued for other vessels cannot be inferred from the obligation to withdraw. That is, rather, the subject-matter of other provisions, which also take account of the objectives of an immobilisation subsidy. ( )

45. As the Netherlands Government has stated, in relation to the provisions on the issuing of licences, the Commission could, in proceeding against the two Member States, have based its argument on Article 3 of the Minimum Information Regulation. The first subparagraph of Article 7(1) of the Structural Measures Regulation could have been considered.

46. Those provisions are, however, not the subject-matter of these applications, and cannot therefore enable them to succeed. ( ) The Netherlands Government has therefore correctly remarked that the Commission has based its application on the wrong legal basis.

47. Both applications should therefore be dismissed.

B – Examination in the alternative of other provisions

48. Only in the alternative, in case the Court takes a broader view of the subject-matter of the application, and in order to emphasise that the interpretation suggested by the Commission of Article 5 of the Minimum Information Regulation in conjunction with Article 8 of the Structural Measures Regulation is not necessary, I would like to demonstrate below that, in these proceedings, the Commission has also not proven any infringement of Article 3 of the Minimum Information Regulation or the first subparagraph of Article 7(1) of the Structural Measures Regulation.

1. Article 3 of the Minimum Information Regulation

49. According to Article 3 of the Minimum Information Regulation, the flag Member State is to issue and administer fishing licences for the fishing vessels flying its flag, having due regard to the provisions of Article 11 of the Fisheries Regulation. That national responsibility is also emphasised by the first two subparagraphs of Article 5(1) of the Fisheries Regulation.

50. Contrary to a submission made by the Netherlands but since abandoned, Member States are not free in the issuing of licences but must have regard to Article 11 of the Fisheries Regulation. That provision contains an obligation on the Council to set the objectives and detailed rules for restructuring the Community fisheries sector with a view to achieving a balance on a sustainable basis between resources and their exploitation.

51. The Council set those objectives with the Restructuring Decision of 1993. In accordance with that decision, fleet capacities were to be reduced in certain areas and not increased in others. In order to achieve those objectives, Member States were to carry out so-called multiannual guideline plans under the supervision of the Commission. The reference in Article 3 of the Minimum Information Regulation to Article 11 of the Fisheries Regulation thus indirectly obliges the Member States to have regard to the restructuring objectives when issuing fishing licences.

52. In principle, therefore, as the Netherlands and United Kingdom Governments recognise, no new fishing capacities can be authorised. By contrast, both governments regard the replacement of capacities being withdrawn as possible in principle.

53. It does not need to be explained in detail here under what circumstances the replacement of capacities being withdrawn is permissible. In particular, the arguments of the two governments ( ) do not need to be discussed in detail.

54. An infringement of Article 3 of the Minimum Information Regulation, Article 11 of the Fisheries Regulation, the Restructuring Decision of 1993 and the relevant multiannual guidance plans would require at the least in each case that the objectives of this programme be missed owing to the replacement of transferred capacities. In that respect, however, the Commission has not presented any argument. It is not known either whether the two Member States missed the objectives or whether withdrawal of the licences without replacement would have contributed towards achieving the objectives which were missed. ( )

55. Therefore, there is no discernible infringement here of Article 3 of the Minimum Information Regulation.

2. First subparagraph of Article 7(1) of the Structural Measures Regulation

56. The issuing of licences by way of replacement in these cases could also have infringed the first subparagraph of Article 7(1) of the Structural Measures Regulation. Independently of the reduction objectives of the multiannual guideline plans, this provision prohibits the replacement of capacity reductions. It does, however, require that the reduction have been financed solely by public subsidies.

57. The Commission is, however, not arguing that the transfer was financed solely by public subsidies. That is moreover doubtful in these cases, since the owners of the vessels obviously wanted to derive profits from fishing in Argentine waters. Moreover, at least in the case of the transfer of the United Kingdom vessels, the proceeds of sale of the licence entitlements were a further reason for the transfer.

58. Therefore, there is no discernible infringement here of the first subparagraph of Article 7(1) of the Structural Measures Regulation either.

3. Result of the examination in the alternative

59. Both applications would also have to be dismissed, even if the Court were to regard Article 3 of the Minimum Information Regulation or the first subparagraph of Article 7(1) of the Structural Measures Regulation as part of the subject-matter of the applications. An examination of those provisions shows rather that the Commission’s suggested interpretation of Article 5 of the Minimum Information Regulation in conjunction with Article 8 of the Structural Measures Regulation would constitute a circumvention of the requirements laid down in Article 3 of the Minimum Information Regulation and the first subparagraph of Article 7(1) of the Structural Measures Regulation.

V – Costs

60. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful in both sets of proceedings, it must be ordered to pay the costs as the Netherlands and United Kingdom Governments have pleaded.

VI – Conclusion

61. I therefore propose that the Court should rule as follows in Case C-34/04 and Case C-64/04:

(1) The application is dismissed.

(2) The Commission of the European Communities is ordered to pay the costs.