Order of the President of the Court of 12 October 2000. - Federación de Cofradías de Pescadores de Guipúzcoa and others v Council of the European Union and Commission of the European Communities. - Appeal - Order of the President of the Court of First Instance in proceedings for interim relief - Anchovy fishing quota - Admissibility. - Case C-300/00 P-R.



European Court reports 2000 Page I-08797



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1. Appeals - Pleas in law - Incorrect assessment of the facts - Inadmissibility

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

2. Applications for interim measures - Suspension of operation of a measure - Conditions governing admissibility - Main action prima facie admissible

(Rules of Procedure of the Court, Art. 83(2))

Summary

1. Under Articles 225 EC and 51 of the Statute of the Court of Justice, an appeal must be limited to points of law and lies on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Community law by the Court of First Instance. Consequently the Court of First Instance has exclusive jurisdiction, first, to make findings of fact, save where the documents in the file submitted to it show that its findings are materially incorrect, and, second, to assess those facts.

( see paras 31-32 )

2. Although it is true that the question of the admissibility of the main action should not, in principle, be examined in the context of proceedings for interim relief, so as not to prejudge the merits of the case, it may nevertheless be necessary, in order for an application to suspend the operation of a measure to be declared admissible, for the applicant to prove the existence of certain matters permitting the conclusion prima facie that the main action to which his application for interim relief relates is admissible, so as to prevent him from obtaining, by way of proceedings for interim relief, the suspension of the operation of a measure which the Court may subsequently refuse to annul, his action having been ruled inadmissible when examined on its merits. Such examination of the admissibility of the action is necessarily summary because the proceedings for interim relief are by nature urgent, and the question of admissibility can be considered only on the basis of the facts adduced by the applicant. However, the decision of the judge hearing an application for interim relief does not prejudge the decision to be made by the Court of First Instance on hearing the main action.

( see paras 34-35 )

Parties

In Case C-300/00 P(R),

Federación de Cofradías de Pescadores de Guipúzcoa, established in San Sebastián, Spain,

Federación de Cofradías de Pescadores de Vizcaya, established in Bilbao, Spain,

Federación de Cofradías de Pescadores de Cantabria, established in Santander, Spain,

and

59 other applicants whose names are listed in the annex,

represented by R. García-Gallardo Gil-Fournier, of the Madrid Bar, and D. Domínguez Pérez, of the La Coruña Bar, c/o S.J. Berwin & Co., 19 Square de Meeûs, Brussels,

appellants,

APPEAL against the order of the President of the Court of First Instance of the European Communities of 10 July 2000 in Case T-54/00 R Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2000] ECR II-2875, seeking to have that order set aside and the grant of the application for interim relief and the other applications at first instance,

the other parties to the proceedings being:

Council of the European Union, represented by J. Carbery and Mrs Sims-Robertson, Legal Advisers, and F. Florindo Gijón, of its General Secretariat, acting as Agents, with an address for service in Luxembourg at the office of E. Uhlmann, Manager of the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant at first instance,

supported by

Commission of the European Communities, represented by T. van Rijn, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

intervener at first instance,

THE PRESIDENT OF THE COURT,

after hearing the Advocate General S. Alber,

makes the following

Order

Grounds

1 By application lodged at the Court Registry on 4 August 2000, the Federación de Cofradías de Pescadores de Guipúzcoa, the Federación de Cofradías de Pescadores de Vizcaya and the Federación de Cofradías de Pescadores de Cantabria, associations of owners of vessels fishing or capable of fishing for anchovy in ICES zone VIII (the three associations), and 59 owners of vessels (natural persons, jointly-owned entities and partnerships) residing or established in the Spanish provinces of Asturias, La Coruña, Pontevedra and Lugo (the 59 owners), whose names are set out in the annex, brought an appeal, pursuant to Article 225 EC and paragraph 2 of Article 50 of the EC Statute of the Court of Justice, against the order of the President of the Court of First Instance of 10 July 2000 in Case T-54/00 R Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2000] ECR II-2875, dismissing their application for suspension of the operation of Council Regulation (EC) No 2742/1999 of 17 December 1999, fixing for 2000 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required, and amending Regulation (EC) No 66/98 (OJ 1999 L 341, p. 1), in that part nine of Annex I D thereof provides that 3 000 tonnes of the anchovy quota of 5 220 tonnes allocated to Portugal in ICES zones IX and X, CECAF area 34.1.1 may be fished in the waters of ICES zone VIII, which is under the sovereignty or within the jurisdiction of France, or any other measure deemed to be appropriate.

2 The applicants seek to have the contested order set aside, ask for the application for interim relief and the other applications at first instance to be granted and ask for costs to be awarded against the Council.

3 By documents lodged at the Court Registry on 8 and 11 September 2000 respectively, the Commission of the European Communities and the Council of the European Union submitted their written observations to the Court.

4 By documents lodged at the Court Registry on 4 August 2000, the Comunidad Autónoma del País Vasco, first, and Nicolás Martínez Rey and Nancy Benilde Vázquez Regueiro CB, Porvenir IV SL and Hnos. Deza SL, secondly, represented by R. García-Gallardo Gil-Fournier, of the Madrid Bar, and D. Domínguez Pérez, of the La Coruña Bar, c/o S.J. Berwin & Co., 19 Square de Meeûs, Brussels, sought leave to intervene in support of the form of order sought by the applicants.

5 Those requests were served on the parties, who presented their observations in documents lodged at the Registry, the applicants on 6 September, the Commission on 8 September and the Council on 11 September.

Legal context

6 Article 2(1) of Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1) is worded as follows:

[A]s concerns exploitation activities [in respect of living aquatic resources and aquaculture], the general objectives of the common fisheries policy shall be to protect and conserve available and accessible living marine aquatic resources, and to provide for rational and responsible exploitation on a sustainable basis, in appropriate economic and social conditions for the sector, taking account of its implications for the marine eco-system, and in particular taking account of the needs of both producers and consumers.

To that end, a Community system for the management of exploitation activities is established which must enable a balance to be achieved, on a permanent basis, between resources and exploitation in the various fishing areas.

7 Article 4(1) of Regulation No 3760/92 provides as follows:

[I]n order to ensure the rational and responsible exploitation of resources on a sustainable basis, the Council, acting, except where otherwise provided, in accordance with the procedure laid down in Article 43 of the Treaty, shall establish Community measures laying down the conditions of access to waters and resources and of the pursuit of exploitation activities. These measures shall be drawn up in the light of the available biological, socio-economic and technical analyses and, in particular, of the reports drawn up by the Committee provided for in Article 16.

8 Since 1995 the French and Portuguese Republics have carried out exchanges of catch quotas. Under point 1, 1.1, of Annex IV to 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):

[E]xchanges between France and Portugal will be tacitly renewable for the period 1995 to 2002, subject to the possibility of annual amendment of the conditions thereof by each Member State at the time of the annual fixing of TACs and quotas.

Exchanges concern the following TACs:

(i) a common TAC for anchovy being fixed for ICES areas VIII and IX, 80% of Portugal's fishing possibilities will be transferred every year to France. Quantities must be fished exclusively in waters under the sovereignty or jurisdiction of France;

...

9 Regulation No 2742/1999 specifies, for the year 2000, the total allowable catch (TAC) of certain fish stocks, including anchovy. The TAC of anchovy is specified in parts eight and nine of Annex I D to the Regulation as follows:

>lt>0

10 On the basis of the exchanges referred to in paragraph 8 of this order, the Council, by means of part nine of Annex I D to Regulation No 2742/1999, allowed 3 000 tonnes of the anchovy quota of 5 220 tonnes allocated to Portugal to be fished in the waters of ICES zone VIII which are under the sovereignty or within the jurisdiction of France (the contested provision).

Proceedings before the Court of First Instance

11 By application lodged at the Court Registry on 11 March 2000, the applicants brought an action under the fourth paragraph of Article 230 EC for, first, the annulment of the contested provision of Regulation No 2742/1999 and, second, a declaration that point 1, 1.1, second subparagraph, indent (i), of Annex IV to Regulation No 685/95 is unlawful.

12 By separate document lodged at the Court Registry on 14 March 2000, they also brought an action, under Articles 242 EC and 243 EC, for suspension of the operation of the contested provision or any other measure deemed to be appropriate.

The order appealed against

13 By the order appealed against, the President of the Court of First Instance dismissed the application for interim relief as inadmissible in view of the fact that the main action was prima facie manifestly inadmissible.

14 With regard to the action brought by the 59 owners, the reasoning of the President of the Court of First Instance was as follows:

30 It is true that, according to settled case-law, the fact that a Community institution must, by virtue of specific provisions, take account of the effects of the measure which it proposes to adopt on the situation of certain individuals is likely to differentiate them from all other persons (see the judgments in Case T-12/93 CCE de Vittel and Others v Commission [1995] ECR II-1247, paragraph 36, and Case T-135/96 UEAPME v Council [1998] ECR II-2335, paragraph 69, and the order of 30 September 1997 in Case T-122/96 Federolio v Commission [1997] ECR II-1559, paragraph 59).

31 However, the sole purpose of the two provisions relied upon by the 59 owners is to establish the framework within which the Council, on a proposal from the Commission, may adopt Community measures laying down the conditions of access to waters and resources and of the pursuit of exploitation activities so that the said provisions apply only in a general way to operators in the fisheries sector.

32 With regard to the argument that the contested provision applies to a limited class of traders, it is clear from the file that, even if the three associations and the 59 owners represent, according to the application for interim relief, all the potential holders of an anchovy fishing licence for the zone in question who are adversely affected by the contested provision, because they hold a licence issued by the Spanish authorities for the first quarter of the year, the number of vessels represented for the purpose of this application for interim relief is greater than the number of vessels holding, at the date of lodging of this application, a licence for the first quarter of 2000 because the figure also includes vessels which have indicated their intention of applying for a licence for the second quarter.

33 Therefore, if the number of anchovy fishing licences in ICES zone VIII may vary from quarter to quarter, depending on the applications from operators, this shows that Spanish fishermen holding a licence for anchovy fishing in zone VIII only constitute a group the composition of which is variable, and not a restricted, closed class. In any case, it must be observed that French and Portuguese anchovy fishermen in the zone in question are also affected, and even mainly affected, by the contested provision.

34 Therefore it is not of individual concern to the 59 owners. Consequently their application for annulment pursuant to the fourth paragraph of Article 230 EC is not admissible and it is unnecessary to consider whether the contested provision is of direct concern to them.

15 With regard to the action brought by the three associations, the decision of the President of the Court of First Instance is based on the following grounds:

35 It must be observed that the associations have merely argued that they must be deemed to have capacity to bring proceedings because their members have such capacity.

36 According to settled case-law, an association formed for the protection of the collective interests of a category of persons could not be considered to be individually concerned for the purposes of the fourth paragraph of Article 230 EC, by a measure affecting the general interests of that category, and was therefore not entitled to bring an action for annulment where its members could not do so individually (see the judgments in Joined Cases 19/62 to 22/62 Fédération Nationale de la Boucherie en Gros and du Commerce en Gros des Viandes and Others v Council [1962] ECR 943, and Case C-321/95 P Greenpeace Council and Others v Commission [1998] ECR I-1651, paragraphs 14 and 29). The 59 owners cannot be considered to be individually concerned by the contested provision, as already found above. It follows that, in so far as it has not been shown that the members of the three associations are in a different situation from that of the 59 owners, the action brought by the associations must be ruled inadmissible.

37 The result is that, in the present case, the associations cannot be considered by the court hearing the application for interim relief to be individually concerned by the contested provision. Consequently their application for annulment under the fourth paragraph of Article 230 EC is not admissible and it is unnecessary to consider whether the contested provision is of direct concern to them.

The arguments of the parties

The applicants' arguments

16 In substance the applicants complain that the President of the Court of First Instance misconstrued the term individual concern within the meaning of the fourth paragraph of Article 230 EC.

17 The 59 owners begin by claiming that the Court of First Instance should interpret that term flexibly. A strict interpretation constitutes a breach of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in so far as it deprives the applicants of their rights of defence. In the absence of a measure applying Regulation No 2742/1999 which could be challenged before a national court, the Court of Justice cannot review the legality of that regulation by means of a preliminary ruling under Article 234 EC, so that the only remedy open to the applicants is an application for the annulment of the regulation.

18 Although the applicants do not deny that Regulation No 2742/1999 is of general application, they contend that, notwithstanding its legislative nature, it is of direct and individual concern to them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and are thereby distinguished individually, just as in the case of a person to whom a decision is addressed.

19 The applicants contend that, in paragraph 31 of the order appealed against, the President of the Court of First Instance misinterpreted Articles 2 and 4(1) of Regulation No 3760/92. According to them, those articles required the institutions, when adopting the contested provision, to take account of the interests of undertakings, as was done in the case of the provisions which were the subject of the judgments in Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, and Case C-390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I-769, paragraphs 25 to 30. The context of the present case is very different from that of other fisheries cases where the Court of First Instance had taken the view that the obligations arising from the abovementioned articles were too general to distinguish a specific group of undertakings (see the order in Case T-194/95 Area Cova and Others v Council [1999] ECR II-2271). In the present case, the persons concerned were differentiated much more clearly as only Spanish and French operators could fish in ICES zone VIII by virtue of, in particular, Article 161(1)(f) of the Act Concerning the Conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the Adjustments to the Treaties (OJ 1985 L 302, p. 23, the Act of Accession), which allocated to Spain 90% and to France 10% of the total allowable catch of anchovy in that zone.

20 In addition, according to the applicants, the Council was in a position to be sufficiently certain of the number of vessels which could fish in the zone concerned in 2000 because the number was the same as in previous years.

21 The applicants also contend that, contrary to what is stated in paragraph 33 of the order of the President of the Court of First Instance, the authorisation to transfer quotas causes the Spanish owners considerable economic, biological and environmental damage. They depend to a large extent on anchovy fishing in ICES zone VIII and it would be difficult for them to restructure their operations.

22 Consequently the applicants state that they form a closed category of operators who are particularly affected by the contested provision. In the present case there are two clearly differentiated groups: those who benefit from the quota transfer and those who do not. The Spanish operators belong to the second group. The applicants admit that, in this case, strictly speaking, the category is not delimited with absolute precision because licences are issued quarterly, but they maintain that the category is demarcated in a way which is de facto final and absolute, because access to it for another operator is, according to them, theoretical and virtually impossible. The lists of vessels authorised to fish for anchovy in ICES zone VIII are said to be constant and do not vary from one year to another, unless vessels are replaced.

23 The applicants add that they could not have waited for the licences for the four quarters of 2000 to be issued as they had to comply with the two-month time-limit for bringing an action for the annulment of Regulation No 2742/1999. The applicants have attached to the appeal lists of vessels which obtained licences for seine fishing in the first three quarters of 2000. According to the lists, 66.6% of those vessels fished during those three quarters, and those which fished during the first quarter of 2000 constitute 77% of the vessels which fished during the three quarters. At the date when the action was initiated, the class of operators therefore constituted a closed category of 77%.

24 So far as the three associations are concerned, the applicants state that, if the individual owners had capacity individually to bring an action against a measure of general application, such as Regulation No 2742/1999, the three associations which protect their interests could themselves bring an action because they had capacity indirectly to bring proceedings and, in that way, could avoid unnecessary proceedings.

Arguments of the Council and the Commission

25 The Council contends that the application is inadmissible in so far as, first, the appeal refers to pleas in law submitted in the proceedings at first instance on questions other than the admissibility of the action and, second, the appeal seeks to contest the factual assessment made by the President of the Court of First Instance in paragraphs 32 and 33 of the order appealed against.

26 On the substance of the case, according to the Council, there is no doubt that the Spanish owners are affected solely in their objective capacity as operators in the fisheries sector to which Regulation No 2742/1999 applies.

27 Regarding the submissions concerning the allocation of the TAC for anchovy by the Act of Accession in ICES zone VIII, the Council contends that it is of little consequence whether relative stability is provided for by the Act of Accession or by a regulation. Furthermore, given the nature of the principle of relative stability, it has been held that individual owners can derive no rights whatever from it (see the order in Case T-194/95, cited above, paragraph 51). The Council adds that the applicants' interpretation of Article 2 of Regulation No 3760/92 is absurd in so far as it would lead to the conclusion that consumers also have capacity to challenge all regulations concerning the management of fish stocks in so far as Article 2 puts producers and consumers on the same level.

28 With regard to the extent of the category of persons affected by Regulation No 2742/1999, the Council begins by pointing out that the applicants themselves admit that, legally, the persons affected did not constitute a closed class. The Council adds that whether the persons affected by a measure constitute an open or a closed class can be determined only at the time when the measure is adopted and that, as the applicants admit, when Regulation No 2742/1999 was adopted, the Council did not know which fishermen would obtain a fishing licence for the year 2000. Finally, the Council refers to settled case-law to the effect that the fact that a legal provision may have different practical effects for the various persons to whom it applies is not sufficient to differentiate them (see the order in Case C-270/95 P Kik v Council and Commission [1996] ECR I-1987), so that no conclusions can be drawn from the supposed difference in the effects of Regulation No 2742/1999 on Spanish operators on the one hand and French and Portuguese operators on the other.

29 The Commission submits that the appeal is inadmissible on the grounds that, first, it does not indicate the precise reasons for which the reasoning of the President of the Court of First Instance is said to be wrong in law and, second, that the appeal is to no purpose because Regulation No 2742/1999 was amended by Council Regulation (EC) No 1446/2000 of 16 June 2000 (OJ 2000 L 163, p. 3) in order to restore for 2000 the situation which had existed in previous years.

30 On the merits of the case, the Commission argues that the obligation to take account of the needs of producers and consumers under Articles 2 and 4 of Regulation No 3760/92 is completely different from the obligations arising from the rules in question in the judgments in Cases 11/82 and C-390/95 P, cited above. As regards the existence of a closed class of operators to which the contested provision is said to apply, the Commission observes that the applicants dispute the assessment of the facts made by the President of the Court of First Instance and, in any case, that they have not shown that there is absolutely no possibility of any change in the identity of recipients of anchovy fishing licences.

Findings

31 It is to be borne in mind that, under Articles 225 EC and 51 of the EC Statute of the Court of Justice, an appeal must be limited to points of law and lies on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Community law by the Court of First Instance.

32 The Court of First Instance has exclusive jurisdiction, first, to make findings of fact, save where the documents in the file submitted to it show that its findings are materially incorrect, and, second, to assess those facts.

33 According to the single ground of appeal, the President of the Court of First Instance misinterpreted the term individual concern in the fourth paragraph of Article 230 EC, which led the President to rule the application for suspension inadmissible.

34 In this connection it must be observed that, although it is true that the question of the admissibility of the main action should not, in principle, be examined in the context of proceedings for interim relief, so as not to prejudge the merits of the case, it may nevertheless be necessary, in order for an application to suspend the operation of a measure to be declared admissible, for the applicant to prove the existence of certain matters permitting the conclusion that the main action to which his application for interim relief relates is admissible, so as to prevent him from obtaining, by way of proceedings for interim relief, the suspension of the operation of a measure which the Court may subsequently refuse to annul, his action having been ruled inadmissible when examined on its merits (see the order of 18 November 1999 in Case C-329/99 P(R) Pfizer Animal Health v Council [1999] ECR I-8343, paragraph 89).

35 Such examination of the admissibility of the action is necessarily summary because the proceedings for interim relief are by nature urgent, and the question of admissibility can be considered only on the basis of the facts adduced by the applicant. However, the decision of the judge hearing an application for interim relief does not prejudge the decision to be made by the Court of First Instance on hearing the main action.

36 For the applicant to be regarded as individually concerned, his legal position must be affected by reason of certain attributes which are peculiar to him or by reason of circumstances in which he is differentiated from all other persons and which distinguish him individually just as in the case of a person to whom a decision is addressed (see Case 25/62 Plaumann v Commission [1963] ECR 95, and Case C-309/89 Codorniu v Council [1994] ECR I-1853, paragraph 20).

37 In the present case, first of all, as regards the applicants' argument that the validity of Regulation No 2742/1999 cannot be submitted to the Court of Justice for assessment otherwise than by means of a direct application for annulment, it must be observed that such a circumstance, even assuming it to be established, cannot constitute authority for changing the system of remedies and procedures established by Articles 230 EC, 234 EC and 235 EC, which is designed to give the Court of Justice the power to review the legality of acts of the institutions. In no case can such a circumstance allow an action for annulment brought by a natural or legal person which does not satisfy the conditions laid down by the fourth paragraph of Article 230 EC to be declared admissible (see the orders in Case C-10/95 P Asocarne v Council [1995] ECR I-4149, paragraph 26, and in Case C-87/95 P CNPAAP v Council [1996] ECR I-2003, paragraph 38).

38 Second, as regards the argument concerning the obligation, said to arise from Articles 2 and 4(2) of Regulation No 3760/92, to take account of the applicants' particular situation, it must be observed that, as the President of the Court of First Instance rightly pointed out, the sole purpose of those provisions is to establish the framework within which the Council, on a proposal from the Commission, may adopt Community measures laying down the conditions of access to waters and resources and of the pursuit of exploitation activities so that the said provisions apply only in a general way to operators in the fisheries sector.

39 The result would be the same even if it were shown that the Council was aware of the applicants' particular situation. It would be contrary to the wording and spirit of the fourth paragraph of the Article 230 EC to allow any individual, where he has participated in the preparation of a legislative measure, subsequently to bring an action against that measure (see the order in Case C-10/95 P, cited above, paragraph 40). A fortiori, mere knowledge, on the part of the author of a measure, of the particular situation of a person affected by the consequences of adoption of the measure is not sufficient to differentiate that person from all other persons for the purpose of the fourth paragraph of Article 230 EC.

40 Third, with regard to the submissions concerning the particular effect of the contested measure on the applicants' situation, they dispute the statement in paragraph 33 of the order appealed against that French and Portuguese anchovy fishermen in the zone in question are also affected, and even mainly affected, by the contested provision. The applicants stress the serious economic and environmental consequences of the provision for them. They contend that it affects only two groups: those who benefit from the transfer of quotas (French owners) and those who do not. The second group consists of Spanish owners only.

41 In this connection, it must be observed that the economic and environmental consequences which the applicants claim they suffer by reason of the contested provision are not, in themselves, sufficient to differentiate them from all other persons with reference to Regulation No 2742/1999. The order appealed against does not make a finding as to such consequences, but merely states that owners of vessels of other Member States are also affected by the contested provision.

42 In the present case, the President of the Court of First Instance did not err in law when he found, in paragraph 33 of the order, that not only Spanish owners were affected by the contested provision. For example, some Portuguese operators are also affected by the exchange of quotas in so far as they cannot fish in ICES zones IX and X, CECAF area 34.1.1.

43 Fourth, as regards the argument concerning the existence of a limited class of operators particularly affected by the contested provision, the applicants dispute, essentially, the finding by the President of the Court of First Instance that Spanish fishermen holding a licence for anchovy fishing in ICES zone VIII constitute a group the composition of which is variable, and not a limited, closed class.

44 On this point it must be observed, first, that this finding is part of the factual assessment by the President of the Court of First Instance and it cannot be directly questioned in the context of an appeal. The applicants have adduced no specific legal argument, but merely try to show that the group was de facto final and absolute and that its composition is very stable.

45 Second, as the Council correctly observes, whether the category of persons affected by a measure is open or closed can, in principle, be determined only at the time when the measure is adopted, and not at a later date, for example, when an action is brought for the annulment of the measure or on an appeal.

46 Finally, it has consistently been held that, for the purpose of the admissibility of an application for the annulment of a measure, an individual may be regarded as individually concerned as a member of a limited class of traders only if the institution originating the measure had an obligation to take account of the particular situation of those traders when adopting the measure (see the judgments in Case 11/82, cited above, paragraph 31; Case C-152/88, cited above, paragraph 11; Case C-209/94 P Buralux and Others v Council [1996] ECR I-615, paragraphs 33 and 34, and Case C-390/95 P, cited above, paragraphs 25 to 30). However, as paragraph 38 of the present order makes clear, the provisions relied upon by the applicants in this connection apply only in a general way to operators in the fisheries sector.

47 In those circumstances, the conclusion that the applicants have not proved the existence of a limited class of operators of which they form part as an element differentiating them from all other persons by reference to Regulation No 2742/1999 is not mistaken in law.

48 It follows from the foregoing that there was no error in law on the part of the President of the Court of First Instance in finding that the application for interim relief was inadmissible so far as the 59 owners were concerned.

49 With regard to the three associations, it is sufficient to observe that the President correctly found in law that an action for annulment brought by them on behalf of their members was inadmissible because the latter could not bring individual actions.

50 For all the reasons mentioned above, it is clear that the applicants' plea in law in support of their appeal cannot succeed and consequently the appeal must be dismissed.

51 With regard to the applications to intervene, lodged in the framework of the appeal, it must be observed that the prospective interveners plead an interest connected with the action on the merits. In those circumstances, in view of the characteristics of the present proceedings, those applications should be considered only if the appeal is allowed in relation to the admissibility of the application to suspend the operation of the contested provision.

52 Consequently, as the order declaring the application for interim relief to be inadmissible has been definitively upheld, it is unnecessary to rule on the applications for leave to intervene in support of the applicants, submitted, on the one hand, by the Comunidad Autónoma del País Vasco and, on the other hand, by Nicolás Martínez Rey and Nancy Benilde Vázquez Regueiro CB, Porvenir IV SL and Hnos. Deza SL.

Decision on costs

Costs

53 Under Article 69(2) of the Rules of Procedure, which are rendered applicable to the appeal proceedings by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Article 69(4), which is also applicable to the appeal proceedings, provides that Member States and institutions which intervene in the proceedings are to bear their own costs. As the Council applied for costs and the applicants have been unsuccessful, they must be ordered to pay the costs of the appeal. The Commission shall bear its own costs.

54 Under Article 69(6) of the Rules of Procedure, which are rendered applicable to the appeal proceedings by virtue of Article 118, where a case does not proceed to judgment, the costs are in the discretion of the Court. In the circumstances of the present case, the prospective interveners must bear their own costs.

Operative part

On those grounds,

THE PRESIDENT OF THE COURT

hereby orders:

1. The appeal is dismissed.

2. It is unnecessary to adjudicate on the applications for leave to intervene.

3. The Federación de Cofradías de Pescadores de Guipúzcoa, the Federación de Cofradías de Pescadores de Vizcaya, the Federación de Cofradías de Pescadores de Cantabria and the 59 other applicants named in the annex shall pay the costs of the appeal.

4. The Commission of the European Communities, the Comunidad Autónoma del País Vasco, Nicolás Martínez Rey and Nancy Benilde Vázquez Regueiro CB, Porvenir IV SL and Hnos. Deza SL shall bear their own costs.