Judgment of the Court (Second Chamber) of 22 December 2008 – Commission v Spain

(Case C‑189/07)

Failure of a Member State to fulfil obligations – Regulation (EEC) No 2847/93 – Articles 2(1) and 31(1) and (2) – Regulations (EC) No 2406/96 and 850/98 – Control system in the fisheries sector – Common marketing standards for certain fishery products – Unsatisfactory monitoring, inspection and surveillance – Failure to adopt adequate measures to penalise infringements – Enforcement of penalties – General failure to fulfil the provisions of a regulation – Production before the Court of additional evidence intended to support the proposition that the failure is general and consistent – Whether permissible

1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the procedure prior to the action – General failure to fulfil the provisions of a regulation (Art. 226 EC) (see paras 27-31)

2. Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – To be exercised at its discretion – Objective nature – Reason for the failure to fulfil obligations – No effect (Art. 226 EC) (see paras 33-34)

3. Fisheries – Conservation of the resources of the sea – Control measures – Obligations of the Member States to inspect and to take action – Scope (Council Regulation No 2847/93, Arts 1, 2 and 31(2)) (see paras 35-40)

4. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission – Presumptions – Not permissible (Art. 226 EC) (see para. 82)

5. Fisheries – Conservation of the resources of the sea – System of fishing quotas – Control measures (Council Regulation No 2847/93, Art. 31) (see para. 124)

Re:

Failure of a Member State to fulfil obligations – Infringement of Articles 2(1) and 31(1) and (2) of Council Regulation (EC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 L 261, p. 1) – Infringement of Council Regulation (EC) No 2406/96 of 26 November 1996 laying down common marketing standards for certain fishery products (OJ 1996 L 334, p. 1) and Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms (OJ 1998 L 125, p. 1) – Unsatisfactory monitoring – Failure to adopt adequate measures to penalise the infringements.

Operative part

The Court:

1. Declares that:

– by failing to carry out satisfactorily the monitoring, inspection and surveillance of fishing activities within its territory and within maritime waters subject to its sovereignty or jurisdiction, including the landing and marketing of species subject to rules on minimum size under Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms and Council Regulation (EC) No 2406/96 of 26 November 1996 laying down common marketing standards for certain fishery products and by failing to devote the necessary human resources to the monitoring, inspection and surveillance of fishing; and

– by failing to act with sufficient diligence to ensure the adoption of appropriate measures against those responsible for infringing Community provisions in relation to fisheries, in particular by bringing administrative actions or criminal proceedings and imposing penalties which have a deterrent effect on those responsible;

the Kingdom of Spain has failed to fulfil its obligations under Articles 2(1) and 31(1) and (2) of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) No 2846/98 of 17 December 1998;

2. Dismisses the remainder of the action;

3. Orders the Kingdom of Spain to pay the costs.