Opinion of Mr Advocate General Alber delivered on 16 July 1998. - Kingdom of Spain v Commission of the European Communities. - Fisheries - Conservation of maritime resources - Inspection of fishing vessels - Joint international inspection programme adopted by the North-West Atlantic Fisheries Organisation. - Case C-179/97.



European Court reports 1999 Page I-01251



Opinion of the Advocate-General

A - Introduction

1 This action concerns the question of whether parts of an implementing regulation of the Commission are contrary to an international agreement concluded by the Community or a basic regulation of the Council.

2 The Spanish Government makes the complaint against the Commission that Article 4a(6) of the implementing Regulation (EEC) No 2868/88, which was added by Regulation (EC) No 494/97, (1) does not require the consent of the flag State for inspectors of other Contracting Parties to board a vessel for the purpose of inspection in port and to remain on board during the inspection. According to the Spanish Government, a requirement for such consent is provided for, first, in an Agreement between the European Community and Canada (`the Agreement'), (2) which is binding in international law and therefore takes precedence over Community law, and, secondly, in Council Regulation (EEC) No 1956/88, as amended by the (Basic) Regulation (EC) No 3067/95. (3) The Spanish Government argues that, because no consent is required, the part in question of the implementing regulation of the Commission is incompatible and seeks its annulment to that extent.

3 The Commission denies, first, that the Agreement is applicable because it has been `multilateralised' in the meantime and, as it was valid only up to the date of multilateralisation, that is to say, 31 December 1995, it is no longer applicable. The Commission also contends that the provision in question reproduces the terms of the Agreement and of the basic regulation, so that the Spanish Government's complaint is unfounded.

4 The Spanish Government claims that the Court should:

- annul Article 4a(6) of Commission Regulation (EEC) No 2868/88 laying down detailed rules for the application of the Scheme of Joint International Inspection adopted by the Northwest Atlantic Fisheries Organisation, as modified by Commission Regulation (EC) No 494/97 of 18 March 1997;

- order the Commission to pay the costs.

5 The Commission claims that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

B - The relevant legislation

6 Paragraph II(9)(a) to (e) of Annex I (concerning the improvement of fisheries control in the area regulated by the NAFO) to the Agreement between the Community and Canada, (4) signed on 20 April 1995 and approved by the Council Decision of 22 December 1995, after giving a list of possible major infringements, provides:

`...

(ii) Where justified, the inspector of the Contracting Party of the vessel concerned shall, where duly authorised to do so, require the vessel to proceed immediately to a nearby port, chosen by the master, ... for a thorough inspection under the authority of the flag State and in the presence of a NAFO inspector from any other Contracting Party that wishes to participate. ...

...

(iv) Where a vessel is required to proceed to port for a thorough inspection pursuant to paragraph (ii) above, a NAFO inspector from another Contracting Party may, subject to the consent of the Contracting Party of the vessel, board the vessel as it is proceeding to port, may remain on board the vessel as it proceeds to port and may be present during the inspection of the vessel in port.

...'

7 Article 1(10)(ii) of Regulation No 3067/95 amending Regulation No 1956/88 adopting provisions for the application of the scheme of joint international inspections adds the following provision:

`Where justified, the competent authority of the Flag Member State or the inspector authorised by the said authority of the vessel concerned shall, where duly authorised to do so, require the vessel to proceed immediately to a nearby port, chosen by the master, ... for a thorough inspection under the authority of the Flag Member State and in the presence of a NAFO inspector from any other Contracting Party that wishes to participate. ...'

Article 1(10)(iv) provides:

`Where a vessel is required to proceed to port for a thorough inspection pursuant to paragraph (ii), a NAFO inspector from another Contracting Party may, subject to the consent of the Contracting Party of the vessel, board the vessel as it is proceeding to port, may remain on board the vessel as it proceeds to port and may be present during the inspection of the vessel in port.'

8 In this connection, the implementing Regulation No 2868/88 of the Commission, as modified by Regulation No 494/97, (5) and now contested by the Kingdom of Spain, provides as follows in Article 4a(6):

`On arrival at the port of diversion, the suspect vessel shall be the subject of a thorough inspection carried out under the authority of the flag Member State, which may be attended by a NAFO inspector from any other Contracting Party wishing to take part ...'.

Article 4b adds the following provisions:

`1. When the Community inspectors suspect that a fishing vessel flying the flag of a Contracting Party has committed one of the serious infringements listed in paragraph 9 of the Annex to Council Regulation (EEC) No 1956/88, the inspectors in question shall ... inform the appropriate authorities of the flag state concerned ...

2. The Commission shall decide, with the agreement of the Contracting Party responsible for the vessel, if a Community inspector is to remain on board when the vessel is diverted. The Commission shall also decide whether a Community inspector is to be present during the thorough inspection of the suspect vessel in port.'

C - Analysis

Whether the Agreement is applicable

9 The Commission contends, first, that the Agreement does not apply to the present dispute, because it has been multilateralised in the meantime and is therefore no longer valid. The Agreement was applicable until 31 December 1995 or until the adoption by the NAFO of the measures described in the Agreement, if earlier. However, as such international measures had been adopted, the Agreement is said no longer to apply in its former version.

10 In reply to this argument, the Kingdom of Spain argues that the Agreement is binding on the Community pursuant to Article 228(7) of the EC Treaty. Subsequent Community measures must not conflict with the Agreement. Moreover, in the Decision of 22 December 1995, the Council approved the conclusion of the Agreement on behalf of the Community. Consequently, the Agreement continued to apply in its original version.

11 Under Article 228(7) of the EC Treaty, international agreements concluded by the Community are binding on the institutions of the Community and on Member States. In order to bring the Community measures in force at that date into line with the Agreement, the Council, by Regulation No 3067/95, made amendments (6) to Regulation No 1956/88 which had been in force up to that date. Finally, the Agreement was approved on behalf of the Community by Council Decision 95/586.

12 The Commission's view that the Agreement is no longer in force could only be accepted if the approval Decision of 22 December 1995 had also approved part `E. Implementation' of the Agreement of 20 April 1995, which states: `... This agreed minute shall cease to apply on 31 December 1995 or when the measures described in this agreed minute are adopted by NAFO, if this is earlier'.

13 Article 1(1) of the approval Decision states that the Agreement constituted in the form of an agreed minute, an exchange of letters, an exchange of notes and Annexes thereto between the European Community and Canada is approved and that the text of the acts referred to in the first paragraph is annexed to the Decision. Therefore, part E was not formally removed. However, the Commission's view seems to be incorrect. It is not clear why an agreement which would have expired in any case on 31 December 1995 should have been approved on 22 December in order to be brought into force only at a later date (Article 2). (7)

14 In actual fact, the fourth recital in the preamble to the Council Decision states that `it is in the Community's interest [finally (8)] to approve the said Agreement'. It could be objected that a recital in a preamble cannot be the source of substantive law and therefore cannot set aside the time-limit which was of course approved by the Decision of approval itself. Although the legal mechanism chosen is somewhat unfortunate, it is clear from the fourth recital that it was the Council's manifest intention to approve (finally, that is to say, for an unlimited period) the Agreement between the EC and Canada.

15 Since the Spanish Government alleges infringement of the Agreement and of the basic Council Regulation, and since both measures contain similar provisions so far as the present case is concerned, the question whether the Agreement applies may be left aside in deciding whether the application is substantiated.

Whether Article 4a(6) of Regulation No 494/97 is valid

16 Consequently, it is now necessary to determine whether the provision in question conflicts with Council Regulation No 1956/88, as amended by Regulation No 3067/95. If so, the Spanish Government's application would have to be allowed.

17 First, as the Court has consistently held, when the wording of secondary Community legislation is open to more than one interpretation, preference should be given as far as possible to the interpretation which renders the provision consistent with the Treaty. Likewise, an implementing regulation must, if possible, be given an interpretation consistent with the basic regulation. (9)

18 According to the Spanish Government, however, a mere comparison of the wording of the provisions in question shows that the requirement for consent is missing in the implementing regulation. Since that requirement is laid down in Article 1(10)(iv) of the Commission Regulation, Article 4a(6) is vitiated by an error in law. Furthermore, the provision in question cannot be construed in such a way that the requirement can be deemed to be implied.

19 The Commission contends that Article 1(10)(iv) includes the requirement for consent only because it regulates the situation where an apparent infringement is found at sea. Since the question of safeguarding the rights of the flag State arises when a vessel is boarded at sea, the consent of that State is necessary for the vessel to be boarded. Accordingly the rule in Article 1(10)(iv) was adopted for that purpose. The disputed provision of the implementing regulation, on the other hand, refers to inspections in port. The consent of the flag State for boarding the vessel in port is not necessary because the sovereign rights of the flag State can be effectively protected by other means. According to the Commission, this is the only possible interpretation of the Agreement and of the Council Regulation.

20 The Commission states that, in order to take account of conflicting interests when the vessel is at sea, the requirement of consent in that situation was laid down in Article 4b(2) of Regulation No 494/97.

21 On this point the Spanish Government maintains that Article 1(10)(iv) does indeed relate to the situation of an inspection in port. That is clear from the wording and the general structure of the relevant provisions.

22 Because of the differing assessments of Article 1(10)(ii) and (iv) and of Articles 4a and 4b of the Commission Regulation, it is necessary first to examine the structure of the relevant provisions in more detail.

23 It must be presumed that the Council Regulation provides for a complete course of action, beginning with the finding that a vessel appears to have committed a serious infringement at sea and ending with a thorough inspection of that vessel in port by one or more inspectors. The basic Council Regulation has the object of adopting provisions for the application of joint international inspection schemes. Where such a scheme has been established, there is much to be said for laying down the rules in question in chronological sequence. The wording of the Council Regulation shows that this was the procedure followed.

24 First, it must be found that a vessel has apparently committed a serious infringement. Then, in justified cases, the vessel may be required to proceed to a designated port. Finally, the vessel may be submitted to a thorough inspection in that port.

25 In the event that this course of action is chosen, Article 1(10)(iv) lays down the further conduct of the inspection in port. If the Contracting Party of the vessel gives its consent, every other NAFO inspector has the following rights:

- to board the vessel as it is proceeding to port;

- to remain on board the vessel as it proceeds to port; and

- to be present during the inspection of the vessel in port.

26 At this point the wording shows that the Commission's arguments cannot be accepted. It is clearly not a question of safeguarding sovereign rights during the inspection of vessels at sea. The general structure of the relevant provisions set out above shows that their purpose is precisely to regulate what happens from the time when the vessel is required to proceed to port to the time when the inspection is carried out.

27 Article 1(10)(ii) of the Council Regulation provides that a vessel may be required to proceed immediately to a nearby port for a thorough inspection, and [the German-language version provides that] any other Contracting Party wishing to participate may dispatch a NAFO inspector for that purpose. Here the word `dispatch' [`entsenden'] (10) is decisive. In the general structure of the joint international inspection scheme, this paragraph relates in principle to the situation at sea, as I have already said. The dispatch of a NAFO inspector can only be regarded as a preparatory measure. As a special provision, Article 1(10)(iv) regulates the situation from when the vessel proceeds to port. In order to board the vessel at that moment and remain there, the NAFO inspectors dispatched under Article 1(10)(ii) require the consent of the flag State.

28 Article 4a(6), added to Regulation No 2868/88 by Regulation No 494/97, provides that on arrival at the port of diversion, the vessel is to undergo a thorough inspection under the authority of the flag Member State in the presence of a NAFO inspector from any other Contracting Party wishing to take part. It does not appear from the wording of this provision that the consent of the flag State is necessary, as in the case of the basic regulation.

29 However, it is clear from the wording itself that it does not relate to the situation at sea, as the Commission claims. In conformity with the provisions of the Agreement and of the Council Regulation, the Commission has laid down a chronological sequence of events in Article 4a. Accordingly, paragraphs (1) to (5) thereof lay down the course of action from the discovery of a presumed infringement until the vessel is ordered to proceed to a particular port. Consequently, Article 4a(6) can only be read as describing the situation where the vessel has begun to proceed to the port.

30 With regard to the relationship between Articles 4a and 4b of the Commission Regulation, it must be observed that Article 4a concerns only infringements presumed to have been committed by Community vessels. Article 4(a)(2) provides:

`As a result of ... being notified ... of an apparent serious infringement committed by a Community vessel, the Commission, in cooperation with the flag Member State, shall ensure that the vessel is inspected ... .'

This becomes meaningful when the further course of action is described in Article 4b(1), when Community inspectors suspect `that a fishing vessel flying the flag of a Contracting Party' has committed a serious infringement. Under Article 4b(2), the Commission may then decide, with the agreement of the Contracting Party responsible for the vessel, whether a Community inspector is to remain on board when the vessel is diverted.

31 However, this can only mean that Articles 4a and 4b do not regulate different situations depending on whether the vessel is at sea or in port, but differentiate according to whether a vessel is a `Community vessel' or a `vessel of another Contracting Party'.

32 Therefore the Commission cannot convincingly maintain that it laid down a requirement of consent in Article 4b(2) for all fishing vessels covered by the basic regulation.

33 It must be concluded that Article 4a(6) of Regulation No 2868/88, added by Regulation No 494/97, does not expressly include the requirement of consent in the basic regulation for the boarding of a vessel by a NAFO inspector and for his remaining on board during an inspection in port.

34 However, the question arises whether the disputed provision can be construed in such a way that it is compatible with the provisions of the Agreement and the basic regulation. In the present case this would only be possible if, in the sentence: `On arrival at the port of diversion, the suspect vessel shall be the subject of a thorough inspection carried out under the authority of the flag Member State, which may be attended by a NAFO inspector from any other Contracting Party wishing to take part', the words `which may be attended' can be construed as implying the consent of the flag State.

35 The Commission, which adopted this provision, has not referred to such an interpretation. It considers that the requirement of consent is adequately provided for by Article 4b(2).

36 However, there is no question here of construing Article 4a(6), by means of the words `which may be attended', in such a way as to conform with the basic regulation. It is clear from the general structure, the wording and the context of the basic regulation that it was the express intention of the Contracting Parties to allow other inspectors to board the vessel in port and to remain during an inspection only if the flag State gives prior consent. This very important condition, which is fundamentally intended to safeguard the sovereign rights of the flag State, cannot be inferred from the words `which may be attended'. On the contrary, those words refer to the situation where another Contracting Party exercises its right to dispatch an inspector on the basis of events at sea.

37 This is why it cannot be presumed that use of the words `which may be attended' is intended to imply the consent of the flag State. Ultimately this conclusion is supported by the Commission's own assertion that Article 4a(6) does not include a requirement of consent and that, on the contrary, such requirement is set out in Article 4b(2).

38 It follows that Article 4a(6) of Regulation No 2868/88, added by Regulation No 494/97, conflicts with Regulation No 1956/88, as amended by Regulation No 3067/95. Consequently the application by the Spanish Government must be allowed and the provision in question must be annulled.

39 The position would be the same if the implementing regulation were examined by reference to the Agreement between the Community and Canada, because the provisions of the latter are the same as those of the basic regulation. However, for the same reason it is unnecessary to decide whether the Agreement is still in force. (11)

Costs

40 Under the first subparagraph of Article 69(2) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings.

D - Conclusion

41 I therefore propose that the Court:

(1) annul Article 4a(6) of Commission Regulation (EC) No 494/97 of 18 March 1997 in so far as it provides that, on arrival at the port of diversion, the suspect vessel is to be the subject of a thorough inspection in the presence of a NAFO inspector from any other Contracting Party wishing to take part, without requiring the prior consent of the Contracting Party responsible for the vessel;

(2) order the Commission of the European Communities to pay the costs.

(1) - Commission Regulation (EEC) No 2868/88 of 16 September 1988 laying down detailed rules for the application of the Joint International Inspection Scheme adopted by the Northwest Atlantic Fisheries Organisation (OJ 1988 L 257, p. 20, modified by Commission Regulation (EC) No 494/97 of 18 March 1997 (OJ 1997 L 77, p. 5).

(2) - Council Decision 95/586/EEC of 22 December 1995 on the conclusion of the Agreement constituted in the form of an agreed minute, an exchange of letters, an exchange of notes and the Annexes thereto between the European Community and Canada on fisheries in the context of the NAFO Convention (OJ 1995 L 327, p. 35).

(3) - Council Regulation (EEC) No 1956/88 of 9 June 1988 adopting provisions for the application of the scheme of joint international inspection adopted by the Northwest Atlantic Fisheries Organisation (OJ 1988 L 175, p. 1), amended by Council Regulation (EC) No 3067/95 of 21 December 1995 (OJ 1995 L 329, p. 1).

(4) - It should be observed that this Agreement was concluded after an incident at the beginning of 1995. The Spanish vessel `ESTAI', which was suspected by Canadian inspectors of using prohibited fishing methods in international waters, was boarded by them and diverted to a Canadian port. The Agreement was subsequently concluded for the purpose of closer and more effective cooperation. However, the events involving the `ESTAI' are not the subject of this action.

(5) - Regulation No 494/97 was adopted on the basis of Regulation No 1956/88, as amended by Regulation No 3067/95.

(6) - See the second recital of the preamble to Regulation No 3067/95.

(7) - It should be mentioned once again that the Convention was to cease to apply before 31 December 1995 if the NAFO adopted the measures described in the Convention before then. The NAFO sent a list of measures to its members on 29 September 1995. The list was to take effect 60 days after notification, provided that no objections were raised. According to the information supplied by the parties in this case, this list of measures took effect.

(8) - The word `finally' appears only in the German version, but this does not alter the conclusion to which the following observations lead.

(9) - See the judgments in Case C-90/92 Dr Tretter [1993] ECR I-3569, paragraph 11; Case 38/70 Tradax [1971] ECR 145, and Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 52.

(10) - The other language versions refer only to the `presence' of other NAFO inspectors, but this does not affect the general conclusion reached in this discussion.

(11) - On this question see paragraphs 12 and 13 above.