Case T-209/04

Kingdom of Spain

v

Commission of the European Communities

(Fisheries policy – Detailed rules and arrangements regarding Community structural assistance in the fisheries sector – Request for authorisation for the establishment of joint enterprises – Failure by the Commission to take a decision – Action for failure to act – Action manifestly unfounded)

Order of the Court of First Instance (Third Chamber), 10 January 2005

Summary of the Order

Actions for failure to act – Notice given to the institution – Subsequent submission of new material liable to influence the assessment of the institution concerned – Removal of the obligation to act

(Art. 232 EC)

The submission by the applicant, after the request to act, of new material that was liable to influence the defendant’s assessment removed the obligation to act, since the institution was not reasonably in a position to take a decision on the requests for exemption submitted to it owing to the submission of that new material.

(see para. 43)

ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)

10 January 2005 ( )

(Fisheries policy – Detailed rules and arrangements regarding Community structural assistance in the fisheries sector – Request for authorisation for the establishment of joint enterprises – Failure by the Commission to take a decision – Action for failure to act – Action manifestly unfounded)

In Case T-209/04,

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

applicant,

v

Commission of the European Communities, represented by T. van Rijn and S. Pardo Quintillán, acting as Agents, with an address for service in Luxembourg,

defendant,

ACTION for failure to act seeking a declaration that the Commission unlawfully omitted to take a decision on the authorisations requested by the Spanish authorities concerning the establishment of joint enterprises, in accordance with Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (OJ 1999 L 337, p. 10), as amended by Council Regulation (EC) No 2639/2002 of 20 December 2002 (OJ 2002 L 358, p. 49),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber)

composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges,

Registrar: H. Jung,

makes the following

Order

Legal framework

Relevant Community provisions

1 Article 1 of Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (OJ 1999 L 337, p. 10) states that the regulation establishes ‘a framework for all structural measures in the fisheries sector carried out in the territory of a Member State’. Article 7, entitled ‘Adjustment of fishing effort’ relates to the measures which Member States may take to adjust fishing effort in order to achieve the objectives of the multiannual guidance programmes. One of those measures is the permanent cessation of vessels’ fishing activities, which may be achieved inter alia by the permanent transfer of the vessel to a third country, including in the framework of a joint enterprise.

2 Article 8 of Regulation No 2792/1999 defines ‘joint enterprise’ as ‘a commercial enterprise with one or more partners who are nationals of the third country in which the vessel is registered’.

3 Council Regulation (EC) No 2369/2002 of 20 December 2002, amending Regulation No 2792/1999 (OJ 2002 L 358, p. 49) amended Article 7(3) of Regulation No 2792/1999, which now provides as follows:

‘The permanent cessation of vessels’ fishing activities may be achieved by:

(a) ...

(b) until 31 December 2004, permanent transfer of the vessel to a third country, including in the framework of a joint enterprise within the meaning of Article 8, after agreement by the competent authorities of the country concerned, provided all the following criteria are met:

(i) there exists a fisheries agreement between the European Community and the third country of transfer as well as appropriate guarantees that international law is not likely to be infringed, in particular with respect to the conservation and management of marine resources or other objectives of the Common Fisheries Policy and with respect to working conditions of fishermen.

Derogations may be granted by the Commission on a case by case basis for permanent transfers in the framework of joint enterprises to third countries, where Community interests do not justify the conclusion of a fisheries agreement and the other conditions for transfer would be fulfilled;

(ii) the third country to which the vessel is to be transferred is not a country which is a candidate for accession;

(iii) the transfer results in a reduction of fishing effort on the resources previously exploited by the vessel transferred; however, this criterion shall not apply when the vessel transferred has lost fishing possibilities under a fisheries agreement with the Community or under another agreement;

(iv) if the third country to which the vessel is to be transferred is not a contracting or Cooperating Party to relevant regional fisheries organisations, that country has not been identified by such organisations as one which permits fishing in a manner which jeopardises the effectiveness of international conservation measures. The Commission shall publish a list of the countries concerned on a regular basis in the C series of the Official Journal of the European Communities;

...’

Relevant national provisions

4 Under Spanish law, the grant of aid to joint enterprises is governed by Chapter V of Real Decreto (Royal Decree) 1048/2003 of 1 August 2003 (BOE No 184 of 2 August 2003, p. 29958), Article 60 of which provides that ‘the Ministry of Agriculture, Fisheries and Food will deal with the case, take the decision and make the payment in accordance with the procedure laid down for the purpose in the corresponding calls for applications’.

5 Article 6(2) of Orden (Order) APA/2222/2003 of 1 August 2003 (BOE No 186 of 5 August 2003, p. 30277) provides that ‘if an express decision has not been taken within three months of submission of the aid request, the request will be deemed to have been denied’.

Facts

6 In accordance with Article 7(3)(b)(i) of Regulation No 2792/99, the Spanish authorities sent the Commission’s staff a total of 35 requests for exemptions relating to various projects to set up joint enterprises. The applicant mentions inter alia in its application requests relating to the projects submitted by Pevega, SA, received by the Commission’s staff on 12 September 2003 (linked to the transfer of the Pevegasa V); by Pesquerías Santa Uxía, SL, received on 4 December 2003 (linked to the transfer of the Madre Rosa); by Balcagia, CB, received on 9 December 2003 (linked to the transfer of the Balcagia); by Calvopesca, SA, received on 16 December 2003 (linked to the transfer of the Montefrisa IX and Montecelo), and, finally, three requests submitted by Mariño Segundo, SL, received on 22 December 2003 (linked to the transfer of the Enterprace, Oitz and Ramos Primero).

7 By fax of 8 January 2004, the Spanish authorities reminded the Commission that they had not yet received a reply in respect of the exemption for the project submitted by Pevega, SA and informed it that ‘the shipowner [has said] that if the vessel is not exported by 20 January this year, the licence ... will be permanently lost’.

8 By letter of 13 January 2004, the Commission replied to the Spanish authorities that it ‘[was] not required to observe any time-limit’ and added:

‘The projects to set up joint enterprises [in question] need an individual exemption from the Commission before the managing authority takes the decision to grant aid from the Financial Instrument for Fisheries Guidance (FIFG). However, that does not prevent the shipowner acting accordingly, exporting the vessel in question and setting up the joint enterprise after its aid request has been registered by the competent authorities of the Member State.’

9 On 30 January 2004, the defendant’s staff received additional information concerning inter alia the previous fishing activities of the Balcagia, Montefrisa IX, Montecelo, Enterprace and Ramos Primero.

10 By letter of 17 February 2004, the applicant formally requested the defendant, pursuant to Article 232 EC, to take action to ‘give a ruling on the administrative authorisations requested’ in respect of the seven projects for joint enterprises referred to above, submitted respectively by Pevega, SA, Pesquerías Santa Uxía, SL, Balcagia, CB, Calcopesca, SA and Mariño Segundo, SL.

11 By decisions of 26 March 2004, the exemptions requested by Pevega, SA in respect of the transfer of the Pevegasa V, by Pesquerías Santa Uxía, SL in respect of the transfer of the Madre Rosa, and by Mariño Segundo, SL in respect of the transfer of the Oitz, were granted.

12 On 1 April 2004, the Permanent Representation of the Kingdom of Spain to the European Union received a letter from the Commission in which it acknowledged receipt of the formal notice from the Kingdom of Spain, indicated that it was aware of the difficulties encountered by the Spanish authorities in implementing the ‘joint enterprises’ measure and notes certain differences regarding the interpretation of the provisions of Article 7(3) of Regulation No 2792/1999. The Commission ended the letter by saying that, in any event, it would look favourably at the request for exemption submitted by the Spanish authorities on 12 September 2003 and would take a decision within the time limits indicated in the formal notice.

13 On 17 June 2004, the Commission’s staff responded positively to the exemption requested by Mariño Segundo, SL in respect of the transfer of the Ramos Primero and negatively to the exemptions requested by Mariño Segundo, SL for the Enterprace, by Calvopesca, SA for the Montefrisa IX and Montecelo and by Balcagia, CB for the Balcagia.

14 The result of the examination of the file on the Ramos Primero was the subject of consultations with the relevant Commission staff. It was then submitted to the Commission which, by letter of 13 July 2004, informed the Spanish Government that, by decision of 12 July 2004, it had approved the exemption requested.

15 As regards the other three requests, namely those relating to the transfer of the Balcagia, Montefrisa IX, Montecelo and Enterprace, the Spanish authorities informed the Commission’s staff on 30 June 2004 that they would send them additional information which, in their opinion, would prove that the requirement regarding the reduction of fishing effort had been fulfilled. This intention was confirmed by the Spanish Ministry of Agriculture, Fisheries and Food by fax of 7 July 2004. In that fax, it is stated that, ‘on the basis of the information set out in this letter, the Spanish authorities ask that no decision be taken in respect of the three projects for joint enterprises mentioned in the letter until the Commission has had a chance to examine the additional information which will be supplied’.

16 Part of the additional information promised by the Spanish authorities, relating in particular to the Montefrisa IX and Montecelo, was sent by fax to the Commission on 9 July 2004.

17 Finally, by letter of 26 April 2004, the Spanish authorities sent an additional request for exemption, submitted by Gude González Hermanos, SC in respect of the transfer of the Cosmos. The Commission’s staff replied by letter of 15 June 2004, informing the Spanish authorities that certain information, which was essential for consideration of the request, was lacking and should therefore be sent to them.

Procedure and forms of order sought

18 The applicant brought the present action by application lodged at the Registry of the Court of First Instance on 10 June 2004. By a separate document of the same date, the applicant applied for the case to be dealt with by the Court of First Instance by means of the expedited procedure provided for by Article 76a of the Rules of Procedure of the Court of First Instance.

19 By letter of 28 June 2004, the defendant informed the Court that it did not object to the case being dealt with by means of the expedited procedure.

20 By decision of 12 July 2004, the Court of First Instance (Third Chamber) granted the application for the case to be dealt with by means of the expedited procedure pursuant to Article 76a of the Rules of Procedure.

21 By way of measures of organisation of procedure, the Court asked the parties to reply to written questions. The parties acceded to those requests within the time limits set.

22 The applicant claims that the Court should:

– declare that, by failing to take a decision within a reasonable time on the authorisations applied for, the defendant has failed to fulfil its obligations under Article 7(3) of Regulation No 2792/99, as amended by Regulation No 2369/2002, and is thereby liable for failure to act;

– order the defendant to pay the costs.

23 The defendant contends that the Court should:

– declare the action inadmissible in so far as it concerns the requests for exemption in respect of the Pevegasa V, Madre Rosa, Oitz and Cosmos;

– declare that there is no further need to adjudicate on the action in so far as it concerns the request for exemption in respect of the Ramos Primero;

– declare the action unfounded in so far as it concerns the requests made in relation to the Balcagia,Montefrisa IX, Montecelo and Enterprace;

– order the applicant to pay the costs.

Law

Arguments of the parties

24 The applicant argues that, under Regulation No 2792/1999, aid to establish a joint enterprise may be obtained until 31 December 2004. The Commission itself acknowledged this in a reply to a Parliamentary question, stating, with regard to Regulation No 2369/2002, that ‘the Commission cannot comment … at this stage on what the eligibility criteria will be after 31 December 2004, the expiry date stipulated in that regulation’. It adds that, where a vessel is transferred to non-member countries which have not concluded fishing agreements with the European Community, the Commission must grant an exemption.

25 The applicant considers that the proper legal classification of the exemption is that of a preliminary administrative authorisation. However, the fact that there are no rules governing the administrative procedure relating to the grant of the exemption cannot allow the Commission to postpone for an unreasonable length of time a decision on the cases submitted to it. In any event, the defendant is under a legal obligation to give a decision. The applicant argues that the Court of First Instance has declared, in respect of another category of administrative procedure, namely complaints alleging infringement of the competition rules, for which likewise there is no prearranged time-limit for giving a ruling, that the Commission is required, within a reasonable time, either to initiate a procedure with respect to the party complained against or to adopt a definitive decision rejecting the complaint (Case T-127/98 UPS Europe v Commission [1999] ECR II-2633). The applicant maintains that, in the present case, the defendant is also required to give a ruling within a reasonable time, a period which has clearly elapsed since the time-limit imposed by national law on the competent Spanish authorities for giving a ruling has been exceeded.

26 The applicant points out that, in its letter of 13 January 2004, the defendant suggests that the shipowner export the vessel concerned without having obtained prior exemption. The applicant takes the view that that solution infringes Annex III, Point 1.1(b)(ii) of Regulation No 2792/99, which requires the vessel to be operational at the time the decision is taken to grant the premium, which is not the case if, on the date of the decision to grant the aid, the vessel has already been exported.

27 The applicant considers that the situation created by the Commission’s failure to take a decision within a reasonable time is extremely urgent. First, the aid on which the Spanish authorities must give a ruling can be granted only until 31 December 2004. That is the final date by which the national authorities must have notified the person concerned of the decision to grant the aid. It should be borne in mind that, from the time the Spanish authorities receive the Commission’s communication authorising the aid, an average of one month is needed to take the decision, because that step, which involves incurring cost, needs to be monitored and the cost accounted for by the Intervención Delegada del Estado. Furthermore, it might happen that, during those formalities, the certificates and documents which, under the national rules, must be provided by the party concerned are no longer valid. In that case, the authority would have to ask the party concerned to supply those documents again, which would entail expense, delays and inconvenience.

28 Secondly, the exceeding of the time-limits imposed by national law on the Spanish authorities for giving a ruling might render the State liable to the parties requesting aid.

29 The defendant points out, first, that decisions granting the requested exemption were adopted, on 26 March 2004, in respect of three of the projects for joint enterprises referred to in the formal notice and relating to the transfer of the Pevegasa V, Madre Rosa and Oitz. Although the applicant refers to the adoption of those three decisions in its application, it is not easy to determine whether the action for failure to act concerns them or not, because the subject-matter of the application is extremely unclear. It concludes that, in any event, the action for failure to act must be declared inadmissible in so far as concerns those three requests for exemption, since the failure complained of had ceased in respect of those requests for exemption before this action was brought.

30 The defendant argues, secondly, that the decision relating to the transfer of the Ramos Primero was adopted on 12 July 2004. It therefore seeks a declaration that there is no need to adjudicate on the action for failure to act brought by the Kingdom of Spain in respect of that request for exemption.

31 Thirdly, the defendant points out, with regard to the projects relating to the Balcagia, Montefrisa IX, Montecelo and Enterprace, that, on 17 June 2004, its staff reached conclusions as to the actions to be taken on them and to be submitted to the Commission for a decision. However, the Spanish authorities themselves asked the defendant on 7 July 2004 not to take decisions on those three requests until its staff had examined the additional information which the authorities sent in part to the defendant on 9 July 2004 or which they undertook to submit. The defendant takes the view that, since the applicant is the only person responsible for the delay in adopting the decisions in question, its action is unfounded in so far as concerns those three requests for exemption.

32 Fourthly, as regards the request for exemption in respect of the Cosmos, the defendant points out that, in this case, the Spanish authorities did not send it a formal notice calling on it to take a decision. The formal notice of February 2004 predates the submission of the request in question and the applicant therefore cannot refer to it. In those circumstances, the defendant considers that the action must be declared inadmissible in so far as concerns the request for exemption in respect of the transfer of the Cosmos, since the procedures which should have been carried out before it was brought were not completed.

Findings of the Court

33 Under Article 111 of the Rules of Procedure, where it is clear that the Court of First Instance has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court of First Instance may, by reasoned order, without taking further steps in the proceedings, give a decision on the action.

34 In accordance with Article 113 of the Rules of Procedure, the Court of First Instance may at any time, of its own motion, consider whether there exists any absolute bar to proceeding with an action or declare, after hearing the parties, that the action has become devoid of purpose and that there is no need to adjudicate on it.

35 In this instance, the Court considers that it has sufficient information from the documents in the case to give a ruling without taking further steps in the proceedings.

36 First of all, it is necessary to define the subject-matter of the dispute. First, the subject-matter of the application is very unclear, merely referring to ‘authorisations requested by the Spanish authorities’. Secondly, there is mention in the application of eight requests for authorisation, seven of which were mentioned in the formal notice.

37 On 9 November 2004, in response to the question posed in that connection by the Court, the applicant stated that the exemptions requested which are referred to in the request to act and in the application and which are still awaiting authorisation from the defendant, concern the Balcagia, Montefrisa IX, Montecelo and Enterprace. It stated, in that regard, that the subject-matter of the proceedings had been restricted. Moreover, the applicant maintained that the sole objective of the reference in the application to the request for exemption in respect of the Cosmos was to draw the Court’s attention to the fact that ‘the problem remain[ed] and it reserv[ed] the right to initiate a new procedure by making a further request for action in respect of a large number of vessels’. It follows, first, that the applicant has withdrawn its action as regards the requests for exemption in respect of the Pevegasa V, Madre Rosa, Oitz and Ramos Primero, and, secondly, that the subject-matter of the action does not include the request for exemption in respect of the Cosmos.

38 It should also be noted that, on 5 November 2004, the Spanish authorities sent a fax to the defendant, informing it that Calvopesca had withdrawn its request for exemption in respect of the transfer of the Montefrisa IX and Montecelo. When questioned on that point by the Court, the applicant maintained that this action still has a purpose, since the defendant has not yet reached a decision with regard to the requests relating to the Balcagia and Enterprace.

39 The action is therefore now limited to an application for a declaration that the Commission has failed to act in relation to the requests for exemption in respect of the Balcagia and Enterprace.

40 In that regard, it should be pointed out, first, that, on 17 June 2004, the defendant’s staff reached a negative conclusion as to the action to be taken in respect of those two requests.

41 Secondly, it should be pointed out that the Spanish authorities informed the defendant’s staff, on 30 June 2004, that they were going to send them additional information in order to prove that the requirement that fishing effort be reduced had been observed. That intention was confirmed by fax dated 7 July 2004, in which it is stated that, ‘for the reasons set out in this letter, the Spanish authorities ask that no decision be taken in respect of the [two] projects for joint enterprises referred to in the letter before the Commission has had the opportunity to examine the additional information which will be submitted’.

42 It is the applicant itself which asked the defendant not to adopt decisions in respect of those two requests until the defendant’s staff had been able to examine certain additional information.

43 The submission by the applicant, after the request to act, of new material that was liable to influence the defendant’s assessment removed the obligation to act, since the defendant was not reasonably in a position to take a decision on the requests for exemption owing to the submission of that new material (see, to that effect and by way of analogy, Case T‑286/97 Goldstein v Commission [1998] ECR II‑2629, paragraphs 28 and 29).

44 It follows that the action for a declaration that the defendant has failed to act must be dismissed as manifestly unfounded in law.

45 For the sake of completeness, it must be noted that the applicant did not send any subsequent formal notice in respect of the matters covered by the application. In that regard, it should be pointed out that, after asking the defendant not to adopt decisions in respect of the projects for joint enterprises in question, the applicant should have reinitiated the formal notice procedure before bringing an action for failure to act.

46 It follows from the above that the application must be dismissed.

Costs

47 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleadings. Since the applicant has been unsuccessful, and the defendant has asked for costs, the applicant must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1. The action is dismissed in respect of the requests relating to the Balcagia and Enterprace.

2. There is no need to adjudicate on the remainder of the action.

3. The applicant shall bear the costs.

Luxembourg, 10 January 2005.





H. Jung M. Jaeger