ORDER OF THE COURT (Eighth Chamber)

5 May 2009 ( )

(Appeal – Regulation (EC) No 147/2007 – Reduction in mackerel quotas allocated to Ireland for years 2007 to 2012 – Action for annulment of Regulation No 147/2007 brought by a group of Irish fishermen comprising 20 out of 23 licence holders from the Refrigerated Sea Water pelagic fleet – Inadmissibility – Appeal clearly unfounded)

In Case C‑372/08 P,

APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 14 August 2008,

Atlantic Dawn Ltd, established in Donegal (Ireland),

Antarctic Fishing Co. Ltd, established in Donegal,

Atlantean Ltd, established in Donegal,

Killybegs Fishing Enterprises Ltd, established in Donegal,

Doyle Fishing Co. Ltd, established in Donegal,

Western Seaboard Fishing Co. Ltd, established in Donegal,

O’Shea Fishing Co. Ltd, established in Donegal,

Aine Fishing Co. Ltd, established in Donegal,

Brendelen Ltd, established in Donegal,

Cavankee Fishing Co. Ltd, established in Donegal,

Ocean Trawlers Ltd, established in Donegal,

Eileen Oglesby, residing in Donegal,

Noel McGing, residing in Donegal,

Mullglen Ltd, established in Dublin (Ireland),

Bradan Fishing Co. Ltd, established in Sligo (Ireland),

Larry Murphy, residing in Cork (Ireland),

Pauric Conneely, residing in Galway (Ireland),

Thomas Flaherty, residing in Galway,

Carmarose Trawling Co. Ltd, established in Donegal,

Colmcille Fishing Ltd, established in Donegal,

represented by G. Hogan, SC, N. Travers, BL, T. O’Sullivan, BL, and D.P. Barry, solicitor,

appellants,

the other parties to the proceedings being:

Commission of the European Communities, represented by K. Banks, acting as Agent, with an address for service in Luxembourg,

defendant at first instance,

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

intervener at first instance,

THE COURT (Eighth Chamber),

composed of T. von Danwitz (Rapporteur), President of Chamber, and R. Silva de Lapuerta and E. Juhász, Judges,

Advocate General: E. Sharpston,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By their appeal, Atlantic Dawn Ltd, Antarctic Fishing Co. Ltd, Atlantean Ltd, Killybegs Fishing Enterprises Ltd, Doyle Fishing Co. Ltd, Western Seaboard Fishing Co. Ltd, O’Shea Fishing Co. Ltd, Aine Fishing Co. Ltd, Brendelen Ltd, Cavankee Fishing Co. Ltd, Ocean Trawlers Ltd, Eileen Oglesby, Noel McGing, Mullglen Ltd, Bradan Fishing Co. Ltd, Larry Murphy, Pauric Conneely, Thomas Flaherty, Carmarose Trawling Co. Ltd and Colmcille Fishing Ltd (collectively, ‘Atlantic Dawn and Others’ or ‘the appellants’) seek the setting aside of the order of 2 June 2008 in Case T-172/07 Atlantic Dawn and Others v Commission (‘the order under appeal’), by which the Court of First Instance declared inadmissible their action for the annulment of Commission Regulation (EC) No 147/2007 of 15 February 2007 adapting certain fish quotas from 2007 to 2012 pursuant to Article 23(4) of Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 46, p. 10; ‘the contested regulation’).

Legal context

Regulation (EC) No 2371/2002

2 The first subparagraph of Article 2(1) 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 sets out the objectives of that regulation, reads as follows:

‘The Common Fisheries Policy shall ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions.’

3 Article 20(1), (3) and (5) of that regulation provides:

‘1. The Council, acting by qualified majority on a proposal from the Commission, shall decide on catch and/or fishing effort limits and on the allocation of fishing opportunities among Member States as well as the conditions associated with those limits. …

…

3. Each Member State shall decide, for vessels flying its flag, on the method of allocating the fishing opportunities assigned to that Member State in accordance with Community law. It shall inform the Commission of the allocation method.

…

5. Member States may, after notifying the Commission, exchange all or part of the fishing opportunities allocated to them.’

4 If Member States exceed the fishing quotas, deductions are to be made under Article 23(4) of Regulation No 2371/2002, the first subparagraph of which provides:

‘When the Commission has established that a Member State has exceeded the fishing opportunities which have been allocated to it, the Commission shall operate deductions from future fishing opportunities of that Member State.’

The contested regulation

5 Pursuant to Article 23(4) of Regulation No 2371/2002, the Commission adopted the contested regulation, which provides for deductions in the mackerel quotas allocated to Ireland and to the United Kingdom of Great Britain and Northern Ireland, and also in the herring quotas allocated to the United Kingdom.

6 Article 1 of that regulation provides that the quotas for those species in the years 2007 to 2012 are to be reduced as shown in Annexes I and II thereto.

7 Those annexes set out the tonnages to be deducted from the mackerel and herring quotas allocated to Ireland and the United Kingdom in the marine areas specified.

8 Annex I to Regulation No 2371/2002 sets out, inter alia, the total deductions – amounting to 24 578.7 tonnes – to be made from the mackerel quotas allocated to Ireland during the period concerned.

Background to the dispute

9 Following an investigation carried out by the United Kingdom in 2005 and 2006, Ireland and the United Kingdom informed the Commission that in certain areas from 2001 to 2004 they had exceeded the fishing opportunities that had been allocated to them, in particular, in respect of mackerel catches.

10 Pursuant to Article 23(4) of Regulation No 2371/2002, the Commission adopted the contested regulation, which reduces, inter alia, the mackerel quotas allocated to Ireland for the period 2007 to 2012.

11 The Irish Department of Communications, Marine and Natural Resources distributes the annual fishing quota allocated to Ireland. The recent practice in respect of the members of the Refrigerated Sea Water pelagic fleet (‘the RSW pelagic fleet’) is for quotas to be distributed according to the size of the vessels, the 10 largest vessels having a ratio of 10, the 8 medium-sized vessels a ratio of 7 and the 5 smallest a ratio of 5.

12 The 20 appellants are members of the RSW pelagic fleet of Ireland, which consists of 23 licence holders.

The proceedings before the Court of First Instance and the order under appeal

13 By application lodged at the Registry of the Court of First Instance on 11 May 2007, Atlantic Dawn and Others brought an action claiming that the Court should:

– annul the contested regulation;

– in the alternative, annul Article 1 of the contested regulation and Annex I thereto, in so far as those provisions reduce the mackerel quotas allocated to Ireland for the years 2007 to 2012, and

– order the Commission to pay the costs.

14 By order of the President of the Seventh Chamber of the Court of First Instance, the Kingdom of Spain was granted leave to intervene in support of the forms of order sought by Atlantic Dawn and Others.

15 The Commission, which had raised an objection of inadmissibility against that action, contended that the Court should dismiss the action as inadmissible and order Atlantic Dawn and Others to pay the costs.

16 By the order under appeal, made under Article 114 of its Rules of Procedure, the Court of First Instance dismissed the action as inadmissible, without initiating the oral procedure.

17 The Court of First Instance stated that it was appropriate to examine first whether Atlantic Dawn and Others were directly concerned by the contested regulation since, if they were not, it would be otiose to consider whether they were individually concerned, as the two conditions laid down in the fourth paragraph of Article 230 EC are cumulative.

18 The Court of First Instance referred to established case-law to the effect that, in order for an individual to be directly concerned by a Community measure, that measure must directly affect the legal situation of the person concerned and there must be no discretion left to the persons to whom that measure is addressed and who are responsible for its implementation, which must be wholly automatic and result from Community rules alone without the application of other intermediate rules (Joined Cases 41/70 to 44/70 International Fruit Company and Others v Commission [1971] ECR 411, paragraphs 23 to 29; Case C‑152/88 Sofrimport v Commission [1990] ECR I‑2477, paragraph 9; Case T‑69/99 DSTV v Commission [2000] ECR II‑4039, paragraph 24; and order of the Court of First Instance of 9 January 2007 in Case T‑127/05 in Lootus Teine Osaühing v Council, paragraph 39).

19 The Court of First Instance stated that the provisions of the contested regulation could not, by themselves, directly affect the legal situation of Atlantic Dawn and Others. Indeed, the rules governing the allocation of fishing opportunities and the related deductions are not provisions which apply wholly automatically, since quotas or deductions are not assigned directly to individuals and each Member State is free to choose the method by which they are to be allocated to individuals.

20 From this the Court of First Instance, referring to paragraph 43 of its order in Lootus Teine Osaühing v Council, concluded that by not establishing one specific system or method of allocating fishing opportunities to individuals, Regulation No 2371/2002 leaves a wide margin of discretion to Member States in the allocation of their fishing opportunities, which is not affected by the obligation to inform the Commission of the method chosen. Indeed, the fact that a Member State has taken that step does not mean that its choice is final. Moreover, both the need for intervention by the Irish Government in the distribution of the national fishing quota and of deductions and the fact that the national authorities enjoy a measure of discretion were confirmed by the recent judgment of the High Court of Ireland of 12 July 2007 in Atlantean v Department of Communications, Marine and Natural Resources (‘the judgment of the High Court of Ireland’), relied on by Atlantic Dawn and Others.

21 With regard to the method of allocating fishing opportunities which, according to Atlantic Dawn and Others, cannot in practice undergo any further alteration, the Court of First Instance noted – taking as its basis paragraph 44 of its order in Lootus Teine Osaühing v Council – that the effects of a Community measure on the situation of the individual falls to be determined by reference to the Community measure in question and, in consequence, it is not important that, owing to the specific features of the national law of a Member State at a given moment, the freedom of action of that Member State may be restricted as regards its management of fishing opportunities. In any event, according to the Court of First Instance, it is clear from documents produced by Atlantic Dawn and Others that the Irish system for distributing fishing quotas has in fact the potential for change, as is shown also by the alterations made to ratios and tonnage in 2001.

22 Lastly, the Court of First Instance held that the fact that, under Article 20(5) of Regulation No 2371/2002, Member States may exchange fishing quotas means, again, that they enjoy a measure of discretion such as to preclude the contested regulation from having any direct effect. The increasingly rare occurrence of such exchanges, relied upon by Atlantic Dawn and Others, does not alter the fact that that option remains available to the Member States.

23 The Court of First Instance therefore held that Atlantic Dawn and Others had not demonstrated that they were directly concerned by the contested regulation, and dismissed the action as inadmissible.

Forms of order sought by the parties

24 By their appeal, the appellants claim that the Court should:

– set aside the order under appeal;

– refer the case back to the Court of First Instance for judgment, and

– order the Commission to pay the costs.

25 The Commission contends that the Court should:

– dismiss the appeal, and

– order the appellants to pay the costs.

The appeal

26 Under Article 119 of its Rules of Procedure, where the appeal is in whole or in part clearly inadmissible or clearly unfounded, the Court of Justice may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss it in whole or in part by reasoned order without initiating the oral procedure.

27 In support of their appeal, the appellants rely on three pleas in law, alleging, as to the first two pleas, that the Court of First Instance misconstrued Article 20(3) and Article 20(5), respectively, of Regulation No 2371/2002, and as to the third plea, that the Court of First Instance disregarded the fact that the appellants were directly concerned, as a single, identifiable, closed group of individuals.

The first plea: misconstruction of Article 20(3) of Regulation No 2371/2002

Arguments of the parties

28 By their first plea, the appellants claim in essence that the Court of First Instance erred in law by relying essentially upon Article 20(3) of Regulation No 2371/2002 in order to conclude that the Irish authorities enjoy a measure of discretion as regards the implementation of the contested regulation.

29 It is clear from the contested regulation, and in particular from Article 1 thereof, that no intermediate national rules are needed in order for the deductions provided for in respect of Ireland to apply and their application is thus wholly automatic. According to the appellants, the fact that Regulation No 2371/2002 does not assign quotas directly to individuals does not mean that they are not directly concerned by that regulation. For the Council itself to assign fishing quotas directly to individuals would not really be consistent with the principle of subsidiarity or the third paragraph of Article 5 EC. The role which the legislature necessarily reserves for Member States cannot, however, be taken to mean that they enjoy any discretion.

30 In any event, the discretion which Member States supposedly enjoy under Article 20(3) of Regulation No 2371/2002 is limited to determining the method of allocating and managing fishing opportunities. As it is, Ireland made the choice a number of years ago to allocate fishing opportunities between the members of the RSW pelagic fleet on a pro rata basis. Although that was not a final choice, the power of a Member State to alter such a choice is circumscribed by Community law: first, by the obligation to inform the Commission of that choice and, secondly, by the general principles of law. Never having contemplated altering its method, Ireland therefore finds itself now – as if it were the Commission’s agent – under an obligation to implement, without any autonomy in the matter, decisions granting or reducing fishing quotas in accordance with its chosen method of allocation.

31 According to the appellants, the Court of First Instance also misconstrued the judgment of the High Court of Ireland, in stating that the latter had held that the Irish authorities enjoyed a measure of discretion in implementing acts adopted on the basis of Article 23(4) of Regulation No 2371/2002.

32 Lastly, the appellants maintain that the Court of First Instance misconstrued its order in Lootus Teine Osaühing v Council. That case cannot validly be compared with the present case since at the material time the Republic of Estonia, being a new Member State, had not yet adopted its method for allocating fishing opportunities, which clearly made it more difficult for the holder of a fishing licence to establish that the Community provisions had had a direct and immediate effect on its legal position. Moreover, in that case the applicants relied on historic Estonian rights that conflicted with Community law.

33 The Commission replies that Member States have very wide discretion in the matter of allocating and deducting fishing opportunities. Thus, in the present case, there is no provision of Community law which requires the Irish authorities to restrict the impact of such deductions to vessels that have contributed to over-fishing; nor is there any Community provision which prohibits them from doing so. Moreover, the obligation to inform the Commission of the method chosen for allocating fishing opportunities has no significance in relation to the division of roles between the European Community and Member States, and the constraints linked to an alteration of that method result principally from the constitutional law of the Member State concerned and only residually from Community law. The appellants themselves admit, moreover, that a chosen allocation method can be changed. Lastly, the Commission contends that the appellants have misconstrued the interpretation by the Court of First Instance of the judgment of the High Court of Ireland and of the order in Lootus Teine Osaühing v Council.

Findings of the Court

34 In accordance with settled case-law, in order for an individual to be regarded as directly concerned by a Community measure, that measure must directly affect the legal situation of the person concerned and there must be no discretion left to the persons to whom that measure is addressed and who are responsible for its implementation, which must be wholly automatic and result from Community rules alone without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, paragraphs 23 to 29; Sofrimport v Commission, paragraph 9; Case C-386/96 P Dreyfus v Commission [1998] ECR I‑2309, paragraph 43; and Case C‑125/06 P Commission v Infront WM [2008] ECR I-1451, paragraph 47).

35 Since the appellants claim in the present case that the Court of First Instance wrongly held, on the basis of a misconstruction of Article 20(3) of Regulation No 2371/2002, that the Irish authorities enjoy wide discretion in implementing the contested regulation, it is necessary only to assess whether that is the case or whether application of the provisions of the contested regulation is wholly automatic, without the need for any intermediate rules.

36 In the present case, it is clear from the first sentence of Article 20(3) of Regulation No 2371/2002 that, once the Council has decided inter alia on catch and/or fishing effort limits under Article 20(1), it is for each Member State – and not the Community legislature – to decide, for vessels flying its flag, on the method of allocating the fishing opportunities which are assigned to that Member State without any allocation method being specified. Given, therefore, that fishing quotas are not directly assigned to individuals by the Community legislature, the provisions at issue always need to be supplemented by subsequent intervention on the part of the Member State.

37 Moreover, it is necessary to reject the appellants’ argument that the choice by the Irish authorities of a particular method for allocating fishing opportunities (according to vessel size) and the obligation to inform the Commission accordingly under the second sentence of Article 20(3) of Regulation No 2371/2002 in practice deprive the national authorities of any room for manoeuvre.

38 First, the Member States’ obligation to inform the Commission of their chosen allocation method is intended merely to ensure a degree of transparency as regards Member States’ choices and does not imply that the Commission has the right to oppose the methods which Member States propose. Accordingly, that obligation does not preclude alterations in the methods for allocating fishing quotas at national level. Nor does the fact that a Member State has regularly resorted to a particular allocation method make any difference to this analysis of the situation.

39 Secondly, the choice of an allocation method by no means leads the discretion enjoyed by Member States under Article 20(3) of Regulation No 2371/2002 to be exhausted and does not preclude Member States from adapting the distribution of fishing quotas to the particular circumstances that may arise from one year to the next, as in the present case where the need to allocate new quotas arose as a result of the illegal landings made by some members of the national fleet entitled to fish for mackerel.

40 Accordingly, neither the obligation to inform the Commission under the second sentence of Article 20(3) of Regulation No 2371/2002 nor the temporary choice of a method for allocating fishing quotas ensures that the fishermen of a Member State will have a particular allocation method applied to them or be assigned a particular quantity of fishing quotas, as would be the case if the contested regulation were implemented automatically (see, with regard to the Commission decisions concerning national plans for allocating greenhouse gas emission quotas, notified by certain Member States, orders of the Court of 8 April 2008 in Case C-503/07 P Saint-Gobain Glass Deutschland v Commission [2008] ECR I‑2217, paragraphs 76 and 77, and of 19 June 2008 in Case C-6/08 P US Steel Košice v Commission, paragraphs 60, 64 and 69).

41 It follows from the foregoing that the Court of First Instance was right in holding that the Irish authorities enjoyed a measure of discretion in implementing the contested regulation and that, in consequence, the appellants could not be regarded as directly concerned by that regulation.

42 The first plea is therefore clearly unfounded.

The second plea: misconstruction of Article 20(5) of Regulation No 2371/2002

Arguments of the parties

43 By their second plea, the appellants claim in particular that the argument that Article 20(5) of Regulation No 2371/2002 and the quota exchanges provided for in that provision support the conclusion that the Irish authorities enjoy a measure of discretion is irrelevant in that a decision to exchange fishing quotas between Member States does not affect de iure the reduction of those quotas as required under the contested regulation.

44 The Commission contends that the Court of First Instance was right in holding that the impact of the contested regulation on individuals depends on decisions taken by Member States with regard to the exchange of fishing quotas. Whilst accepting that the quantities concerned are not great, the Commission contends that quota exchanges cannot be described as hypothetical, and supports its contention with examples from the period 2000 to 2007. It states that, in any event, the Court of First Instance was right in holding that, for the purposes of determining whether a Member State enjoyed a measure of discretion preventing a Community measure from directly affecting individuals, the only thing that mattered was whether that Member State had an instrument capable of influencing the practical effect of the measure, and not whether it had used that instrument in practice. Finally, the argument concerning quota exchanges is purely supplementary, and does no more than support a conclusion which would already be unavoidable without it.

Findings of the Court

45 According to settled case-law, complaints directed against grounds stated in a judgment of the Court of First Instance purely for the sake of completeness cannot lead to that judgment being set aside and are therefore nugatory (see, inter alia, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 148, and the order of 23 February 2006 in Case C-171/05 P Piau v Commission, paragraph 86).

46 In the present case, in holding that, pursuant to Article 20(3) of Regulation No 2371/2002, the Irish authorities had scope for manoeuvre in the application of the contested regulation, the Court of First Instance established to the requisite legal standard that the appellants could not be directly affected by the contested regulation.

47 In the order under appeal, the grounds concerning quota exchanges between Member States, which are moreover introduced in paragraph 44 of that order by the word ‘also’, are therefore supplementary in relation to the other grounds of that order establishing that Member States have scope to manoeuvre as regards the allocation of fishing opportunities to individuals. The plea directed against those grounds is therefore clearly unfounded.

48 It follows that the second plea is also clearly unfounded.

The third plea: the Court of First Instance disregarded the fact that the appellants were directly concerned, as a single, identifiable, closed group of individuals

Arguments of the parties

49 By their third plea, the appellants claim that the Court of First Instance disregarded the fact that they are directly concerned, as a single, identifiable, closed group of individuals. They note in that connection that they represent the great majority of Irish licence holders from the RSW pelagic fleet and such licence holders are the only ones entitled to fish within the limits of the mackerel quota allocated to Ireland. As a response to alleged over-fishing on the part of some members of the group, the contested regulation is therefore a bundle of individual decisions applying to the group. The effects of the contested regulation on that group have in practice been certain for some or all of the appellants from the time of its adoption, whatever the method used to implement it.

50 The Commission contends that it is impossible to discern in this plea any precise criticism of the reasoning of the Court of First Instance and that it should therefore be rejected as not revealing any error of law on the part of that court.

Findings of the Court

51 The Court of First Instance was right not to take into account the arguments concerning a closed group of persons and a bundle of individual decisions, which the appellants had put forward at first instance to show that they were individually concerned by the contested regulation.

52 Having found that since the two conditions laid down in the fourth paragraph of Article 230 EC are cumulative there was no need to examine the second condition if – as in the case before it – the first condition, direct effect, was not met, the Court of First Instance was entitled not to examine the appellants’ arguments in that regard (see, to that effect, the order in US Steel Košice v Commission, paragraph 75).

53 In those circumstances, the Court of First Instance did not err in law in its application of the fourth paragraph of Article 230 EC by holding that the Irish authorities enjoyed a measure of discretion for the purposes of implementing the contested regulation which, accordingly, did not directly affect the appellants.

54 The third plea must therefore be rejected as clearly unfounded.

55 It follows from all the above considerations that the appeal must, pursuant to Article 119 of the Rules of Procedure, be dismissed in its entirety.

Costs

56 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings 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 successful party’s pleadings. Since the Commission has applied for costs against the appellants and the latter have been unsuccessful, they must be ordered to pay the costs.

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

1. Dismisses the appeal;

2. Orders Atlantic Dawn Ltd, Antarctic Fishing Co. Ltd, Atlantean Ltd, Killybegs Fishing Enterprises Ltd, Doyle Fishing Co. Ltd, Western Seaboard Fishing Co. Ltd, O’Shea Fishing Co. Ltd, Aine Fishing Co. Ltd, Brendelen Ltd, Cavankee Fishing Co. Ltd, Ocean Trawlers Ltd, Eileen Oglesby, Noel McGing, Mullglen Ltd, Bradan Fishing Co. Ltd, Larry Murphy, Pauric Conneely, Thomas Flaherty, Carmarose Trawling Co. Ltd and Colmcille Fishing Ltd to pay their own costs.

[Signatures]