Case C-36/04

Kingdom of Spain

v

Council of the European Union

(Regulation (EC) No 1954/2003 – Articles 3, 4 and 6 – Management of the fishing effort – Community fishing areas and resources – Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties – Non-severability – Inadmissibility)

Summary of the Judgment

Actions for annulment – Subject-matter – Partial annulment

(Art. 230 EC; Council Regulation No 1954/2003, Arts 3, 4 and 6)

Partial annulment of a Community act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act. That requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance. The question whether partial annulment would alter the substance of the contested measure is an objective criterion, and not a subjective criterion linked to the political intention of the authority which adopted the measure at issue.

Therefore, an action brought by a Member State for the annulment of Articles 3, 4 and 6 of Chapter II of Regulation No 1954/2003 on the management of the fishing effort relating to certain Community fishing areas and resources is inadmissible.

Those provisions, which constitute the core of that regulation, lay down the decisive factors concerning the management of fishing effort while the other provisions of Chapter II are of a technical nature, their application being linked to the articles in respect of which annulment is sought. Chapter III establishes a control regime to ensure compliance with the management of the fishing effort and consequently only makes sense if the contested provisions already exist.

(see paras 12-14, 16, 19, 21)

JUDGMENT OF THE COURT (Second Chamber)

30 March 2006 ( )

(Regulation (EC) No 1954/2003 – Articles 3, 4 and 6 – Management of the fishing effort – Community fishing areas and resources – Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties – Non-severability – Inadmissibility)

In Case C-36/04,

ACTION for annulment under Article 230 EC, brought on 29 January 2004,

Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,

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 S. Pardo Quintillán, acting as Agents, with an address for service in Luxembourg,

intervener,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, J. Makarczyk, R. Silva de Lapuerta, P. Kūris (Rapporteur) and G. Arestis, Judges,

Advocate General: P. Léger,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 29 September 2005,

after hearing the Opinion of the Advocate General at the sitting on 19 January 2006,

gives the following

Judgment

1 By its application, the Kingdom of Spain seeks the annulment of Articles 3, 4 and 6 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 (EEC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95 (OJ 2003 L 289, p. 1; the ‘contested regulation’).

Legal context

2 Article 3 of the contested regulation provides:

‘1. Except for the area defined in Article 6(1), 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, those covered by Council Regulation (EC) No 2347/2002 of 16 December 2002 establishing specific access requirements and associated conditions applicable to fishing for deep-sea stocks and fisheries for scallops, edible crab and spider crab, as laid down in the Annex to this Regulation. For the calculation of fishing effort the fishing capacity of a vessel shall be measured as the installed power expressed in kilowatts (kW);

(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).

…’

3 As provided in Article 4 of that regulation:

‘1. The fishing effort of fishing vessels equal to or less than 15 metres in length overall shall be assessed globally for each fishery and area or division referred to in Article 3(1) during the period 1998 to 2002.

2. The fishing effort of fishing vessels equal to or less than 10 metres in length overall shall be assessed globally for each fishery and area or division referred to in Article 6(1) during the period 1998 to 2002.

3. Member States shall ensure that the fishing effort of these vessels is limited to the level of fishing effort assessed conforming to paragraphs 1 and 2.’

4 Article 6 of the contested regulation establishes a specific regime for the management of fishing effort in a biologically sensitive area enclosed by the coast of Ireland, in which ‘Member States shall assess the levels of fishing effort exerted by vessels equal to or more than 10 metres in length overall, as an annual average of the period 1998 to 2002, for demersal fisheries, excluding those covered by Regulation (EC) No 2347/2002, and fisheries for scallops, edible crab and spider crab, and allocate the level of fishing effort thus assessed for each of those fisheries’.

The forms of order sought

5 The Kingdom of Spain claims that the Court should:

– annul Articles 3, 4 and 6 of the contested regulation (the ‘contested provisions’);

– order the Council of the European Union to pay the costs.

6 The Council claims that the Court should:

– dismiss the action;

– order the Kingdom of Spain to pay the costs.

7 By order of the President of the Court of 19 May 2004, the Commission of the European Communities was granted leave to intervene in support of the form of order sought by the Council. It asks the Court to dismiss the action and to order the Kingdom of Spain to pay the costs. It also asks, in the case that the action is successful, that the temporary effects of the contested regulation be maintained, pursuant to the second paragraph of Article 231 EC.

The action

8 The Kingdom of Spain raises essentially two pleas in law in support of its action. The first alleges infringement of the principle of non-discrimination. The said Member State considers that the Council failed to take into account the specific situation of the Spanish fleet under the rules of the Act of Accession when it set the reference period for the calculation of the fishing effort, and applied a specific effort regime in an area situated to the south-west of Ireland. The second plea in law alleges that the Council misused its powers in adopting Article 6 of the contested regulation, since the real objective of delimiting the biologically sensitive area was not to protect juvenile hake but to extend the restrictions already applying to the Spanish fleet.

9 The Court invited the parties to submit their observations on the question of the admissibility of the action having regard to the case-law according to which partial annulment of a Community act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (see, inter alia, Case C-29/99Commission v Council [2002] ECR I-11221, paragraphs 45 and 46; Case C-378/00Commission v Parliament and Council [2003] ECR I‑937, paragraph 30; Case C-239/01Germany v Commission [2003] ECR I‑10333, paragraph 33; and Case C-244/03 France v Parliament and Council [2005] ECR I-4021, paragraph 12).

10 During the hearing, the Council submitted that, whilst the contested provisions are severable from each other, that does not apply to the latter and the other provisions of the contested regulation, those other provisions no longer making sense if the contested provisions were to be annulled. The effects of such an annulment would be particularly serious as regards Article 15 of the said regulation repealing 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). Consequently, the Council queries the admissibility of the action.

11 The Commission adopts the Council’s arguments, pointing out that the contested provisions constitute the core of the new regime for managing fishing effort and that, if those provisions were annulled, there would no longer be a regime for managing that effort applicable in western waters.

12 As was recalled in paragraph 9 of this judgment, it follows from settled case-law that partial annulment of a Community act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act.

13 The Court has repeatedly ruled that that requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance (Joined Cases C-68/94 and C-30/95France and Others v Commission [1998] ECR I-1375, paragraph 257; Commission v Council, paragraph 46; Germany v Commission, paragraph 34; and France v Parliament andCouncil, paragraph 13).

14 Moreover, the Court has decided that the question whether partial annulment would alter the substance of the contested measure is an objective criterion, and not a subjective criterion linked to the political intention of the authority which adopted the measure at issue (Germany v Commission, paragraph 37).

15 In the present case, it should be examined whether the annulment of the contested provisions, with the other provisions of the contested regulation continuing to exist, would objectively modify the substance of that regulation.

16 The contested provisions constitute the core of the contested regulation.

17 According to the fourth recital in its preamble, the contested regulation seeks to establish a new fishing effort management regime in the defined areas to ensure that ‘there is no increase in the overall levels of existing fishing effort’.

18 Moreover, the contested provisions come within Chapter II of the contested regulation concerning the fishing effort management regime. Article 3 of that regulation lays down measures concerning the capture of demersal species and certain molluscs and crustaceans, Article 4 specifies the fishing effort applicable to fishing vessels equal to or less than 15 metres in length overall and Article 6 sets out the conditions for the management of that effort in biologically sensitive areas.

19 The contested provisions thus lay down the decisive factors concerning the management of fishing effort while the other provisions of Chapter II of the contested regulation are of a technical nature, their application being linked to Articles 3, 4 and 6 of that regulation. Chapter III of the said regulation establishes a control regime to ensure compliance with the management of the fishing effort and consequently only makes sense if the contested provisions already exist.

20 Finally, Article 15 of the contested regulation repealed Regulations Nos 685/95 and 2027/95 by not later than 1 August 2004. These two regulations defined and implemented the fishing effort management regime relating to certain Community fishing areas and resources. The annulment of the contested provisions would have the effect of creating a gap in the law since, as a consequence of such an annulment, no legislation concerning the management of the fishing effort would be in force.

21 It is evident from the above that the contested provisions are not severable from the rest of the contested regulation. It follows that the claim for partial annulment of the said regulation, submitted by the Kingdom of Spain, is inadmissible and that the action must consequently be dismissed.

Costs

22 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 Council has applied for costs and the Kingdom of Spain has been unsuccessful, it must be ordered to pay the costs. In accordance with Article 69(4), the Commission is to bear its own costs.

On those grounds, the Court (Second Chamber) hereby:

1. Dismisses the action;

2. Orders the Kingdom of Spain to pay the costs;

3. Orders the Commission of the European Communities to bear its own costs.

[Signatures]