Opinion of Mr Advocate General Lenz delivered on 27 February 1991. - Commission of the European Communities v French Republic. - Fisheries - Control obligations imposed on the Member States. - Case C-64/88.



European Court reports 1991 Page I-02727



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts

1. The present Treaty - infringement proceedings against the French Republic relate to provisions in the field of the Common Fisheries Policy.

2. Council Regulation (EEC) No 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources(1) and Regulation No 3094/86,(2) which replaced it with effect from 1 January 1987, lay down various rules in order to attain the objective referred to in their titles. Of those rules we are concerned in these proceedings only with the (minimum) mesh,(3) attachments to nets (devices),(4) by-catches(5) and the minimum size of fish.(6)

3. According to Article 1(1) of Regulation No 2057/82(7) and (since 1 August 1987) No 2241/87(8) each Member State must, within ports situated in its territory and within maritime waters subject to its sovereignty or its jurisdiction, inspect fishing vessels flying the flag of, or registered in, a Member State in order to ensure compliance with all the regulations in force concerning conservation and control measures.(9)

4. Under Article 1(2) of Regulation No 2057/82 and 2241/87, if they observe an infringement of the said regulations they must take penal or administrative action against the skipper of the vessel (or other responsible persons).

5. The Commission complains that the defendant Member State has not complied with its obligations as regards surveillance and prosecution of infringements so far as the said conservation measures are concerned.

6. It claims that the Court should:

- declare, pursuant to the second paragraph of Article 169 of the EEC Treaty, that, by failing to undertake control activities ensuring compliance with the technical conservation measures laid down in Council Regulations Nos 171/83 and 3094/86, the French Republic has failed to fulfil its obligations under Article 1 of Council Regulations Nos 2057/82 and 2241/87;

- order the French Republic to pay the costs.

7. The French Government contends that the action should be dismissed and the Commission ordered to pay the costs; it contends it has complied with the relevant obligations.

8. There is no need at this stage to describe those submissions, or other aspects of the facts in greater detail. I shall return to them in the body of my Opinion and, for the rest, I refer to the Report for the Hearing.

B - Opinion

I - Subject-matter and admissibility of the action

9. 1. The parties in the present proceedings under Article 169 of the EEC Treaty are not at issue concerning the interpretation of the provisions to which the complaint of infringement relates but as to whether the complaint is proved.

10. Although that question was raised from the outset of the proceedings, since in its defence France disputed the infringement with which it was charged, the argument subsequently centred on a precise issue. In the pre-litigation procedure and in its pleadings the Commission had referred to certain reports relating to missions carried out by its staff who were present at the inspection operations carried out by the French authorities pursuant to Article 12(3) and (4) of Regulations Nos 2057/82 and 2241/87. Those reports according to the Commission, had revealed considerable deficiencies in the inspections and action taken. Since the Commission had described the reports as confidential,(10) the Court requested the Commission to produce non-confidential versions, whereupon the Commission submitted summaries of the said reports in which a number of particulars had been obliterated. The relevant particulars include the names of the fishermen involved, the authorities and the inspectors. Since the Commission took the view that the possibility of indirect identification of the said persons and institutions by inferences and comparisons had also to be excluded, particulars of the exact dates and places of the inspections were similarly removed. The annual figures and the sequence of the inspections are still shown in the document. The defendant Member State is of the opinion that the documents produced cannot be used as evidence of the complaints which form the subject of the proceedings. It claims that it cannot effectively defend itself against the complaints based on those documents since in the absence of particulars in relation to place, time and the persons and authorities involved it is not in a position to identify the events referred to in the Commission' s documents. The Commission on the other hand considers that on making a comparison with the corresponding reports by national officials France is very well able to do so.

11. In this discussion we have, however, somewhat lost sight of the real subject-matter of the complaint of infringement of the Treaty. Only when that is clear can we judge to what extent the action is admissible and, in the light of the evidence produced, well founded.

12. 2. At first sight, the Commission' s complaint appears to be a monolithic unit but in truth contains three different aspects which are logically linked.

13. (a) In order to ensure that the inspections and actions of the kind in point in this case, are properly carried out, the Member State concerned must organize such activity in a particular manner. That aspect of the obligation placed on the Member States is again confirmed in the second subparagraph of Article 2(1) of Regulations Nos 2057/82 and 2241/87. According to that provision "the Member States shall ensure" that the provisions and measures referred to in Article 1 of the particular regulation are complied with. Such organizational measures are necessary for various reasons. As far as concerns action in respect of infringements by fishermen, it is necessary, as in the case of the transposition of directives, for there to be legal bases governing the details of the penalties and procedures. Although no legislative measures are needed, nevertheless administrative measures of organization are required in order to ensure the proper conduct of the inspections. It is necessary to determine inter alia the precise subject-matter of the monitoring measures (specifying the relevant provisions of Community law), the competences and, according to the circumstances, also the places and times and extent of the inspections. Without such an organizational framework, implementation of the measures for which the Member States are responsible cannot function on the ground.

14. As regards the Commission' s application to the Court, the complaint expressed therein covers that organizational aspect. In the form of order which it seeks, as stated in its application, the Commission refers to the wording, which I have just cited, used in Regulations Nos 2057/82 and 2241/87 and seeks a declaration that France has infringed those regulations "by failing to undertake control activities ensuring compliance with the technical conservation measures laid down in Council Regulations Nos 171/83 and 3094/86 ... ".(11) The remainder of the application points in the same direction. Thus, it is stated at 1.3 that France has infringed the said provisions "by not fully complying with the technical measures ... ", while at 2.1 there is reference to the letter of formal notice which was concerned with France' s obligation to ensure ("garantir"(12)) the application of certain technical measures.

15. It is in that context that the complaint that France applied national rules instead of Community provisions in relation to the size of the mesh and the minimum size of fish(13) falls to be seen. That complaint, by reason of its very terms, touches on the organization of measures for which the Member States are responsible, for it implies the existence of statutory or administrative rules which are made the subject of the inspections and are in conflict with Community provisions on technical measures of conservation.

16. (b) As a logical consequence(14) of the first part of the complaint which has so far been described the Commission criticizes France, secondly, for deficiencies in the actual conduct of the monitoring. Enlarging on the statement of the relief sought which, as is apparent from the extract quoted above, also covers this aspect, the application states (p. 8): "l' État membre qui n' assume pas en fait ses obligations de contrôle porte atteinte à la solidarité entre États membres et à l' égalité de traitement des pêcheurs qui sont à la base même de contraintes imposées par la politique commune de conservation des ressources halieutiques".(15)

17. (c) The third link in the logical chain which forms the Commission' s complaint is that insufficient action was taken against the fishermen who infringed the provisions of the technical conservation measures. Only the imposition of penalties, with their individual and general dissuasive effects, ensure, in accordance with the concept underlying Regulations Nos 2057/82 and 2241/87, compliance with those provisions. The Commission therefore not only objects that there is a gap between the infringements found by the French authorities and the infringements which could in fact be found but also complaints of "l' absence corrélative de poursuites administratives ou pénales".(16)

18. 3. It must now be considered whether and to what extent the action, with its subject-matter thus defined, is admissible. Such an examination is always called for in proceedings under Article 169 of the EEC Treaty from the point of view of the concordance between the pre-litigation procedure and the proceedings before the Court if the Member State concerned is charged with conduct which cannot clearly be regarded as a continuing act or omission. In the present case, such a clear classification is, in any event, not possible on account of the second and third parts of the subject-matter of the action, since these are concerned with separate instances of conduct. It is a question here of the individual cases in which France, in the Commission' s view, has failed to fulfil its duty with respect to inspections (and, as a consequence, with respect to prosecutions in regard to infringements by fishermen).

19. The Court has consistently held that the subject-matter of an application under Article 169 of the Treaty is defined by the pre-litigation procedure provided for by that article.(17) The letter of formal notice itself, which is intended to give the Member State an opportunity to submit its observations, an opportunity which constitutes an essential guarantee and on which the lawfulness of the procedure therefore depends,(18) must define the subject-matter.(19) Moreover, the Commission' s reasoned opinion and the application must be founded on the same grounds and submissions.(20)

20. (a) As far as concerns the organizational aspect of the obligations with the infringement of which the Commission charges France in the proceedings before the Court, the charge, in my view, may already be discerned in the letter of formal notice and, similarly, in the reasoned opinion. As regards the letter of notice of 21 December 1984, it must be observed that it was primarily based on the facts which the Commission' s officials responsible for inspections claimed to have been able to find on the spot; the Commission states that in relation to the four conservation measures in question there were no or (in relation to mesh size and attachments) only very limited inspections and that the Community provisions (on the minimum size of fish) were not being applied. However, what concerned the Commission was plainly not isolated deficiencies in inspections and in action in respect of infringements but the systematic nature of the deficiencies observed. Thus, in regard to the complaint that there were only limited inspections in maritime waters in relation to meshes and attachments, the Commission provides the following explanatory comment:

"A chaque occasion où des navires ont fait l' objet d' un contrôle en mer en présence d' inspecteurs de la Commission, il a été observé que le maillage des filets ou leurs dispositifs contrevenaient au règlement n 171/83 du Conseil, titre I; cependant, le service d' inspection de votre gouvernement n' a pris aucune mesure immédiate à cet égard et, en général, aucune mesure pénale ou administrative ultérieure n' a été prise".(21)

21. The same is true as regards the problems relating to by-catches and minimum size of fish; there, too, the Commission is obviously concerned with the systematic non-application of the measures prescribed by Community law:

"Les missions des inspecteurs de la Commission dans les ports ont montré qu' il n' y a aucun contrôle des prises accessoires et que, en particulier dans les ports du golfe de Gascogne, il n' y a aucune application des dispositions communautaires relatives aux tailles minimales des poissons prévues dans le règlement n 171/83 du Conseil, titre III; lorsqu' une réglementation est appliquée, il s' agit des mesures nationales relatives aux tailles des poissons, qui sont moins strictes que la réglementation communautaire, ce qui n' est pas conforme à l' article 1er du règlement n 2057/82".(21)

That quotation also concerns the point, already made above, that proper organization of inspections is obviously not ensured if the Member State concerned, by means of legislative or administrative measures, adopts technical provisions which differ in content from the Community provisions and bases the inspections on them.

22. I have just said that, in so far as it objected precisely to the systematic nature of the deficiencies in inspections which were found to exist, the Commission also objected, at least indirectly, to the inadequate organization of the inspections. I do not think that such a conclusion is rash or even inadmissible. In its letter of formal notice, the Commission sought an answer from the French Government and not an answer from individual national officials acting contrary to Community law. If it could do so at all, the Government could now express an opinion on the conduct of such individual officials, in so far as the deficiencies found may have been due to such individual conduct, only with the greatest difficulty. Furthermore, if the Commission took such a step, it would have only limited value as a measure for ensuring the application of Community law. If the deficiencies in inspections were as widespread as the Commission stated in its complaint against France, then any individual measures to which France could have referred specifically in its answer could be only of limited assistance.

23. On the other hand, it was possible and reasonable to expect France to react at the organizational level: possible, because the Government could have forwarded to the Commission the existing legislative and administrative measures, or any which had just been adopted, which in its view constituted the basis for proper inspections (in the future); reasonable, because such measures of general application are the most appropriate for improving the general picture of the inspections position to which the Commission objected and thus reducing automatically the number of individual deficiencies in inspections.

24. The French Government' s answer reflects this. In its letter of 22 January 1985 it first refers to certain efforts to ensure that the fishermen were better informed of the applicable rules and then continues:

"D' autre part, les services chargés du contrôle font, eux aussi, l' objet d' une mise à jour des connaissances et d' instructions extrêmement précises dans la conduite à tenir. La publicité qui doit être donnée à cette opération devrait permettre une meilleure application des règlements communautaires et faire apparaître progressivement une amélioration au niveau des contrôles. Par ailleurs, la présentation prochaine au Parlement d' un projet de loi précisant les sanctions applicables en cas de violation de la réglementation CEE et augmentant de façon importante les peines encourues par les pêcheurs en infractions devrait favoriser l' action de ses services."

25. In the result, it must be found that the complaint of organizational deficiencies in inspections contained in the application to the Court was already contained in the letter of formal notice (and was also correctly understood).

26. The reasoned opinion of 18 June 1986 presents the same picture. It essentially reproduces literally the complaints formulated in the letter of formal notice and elaborates on them. On page 3 of the opinion there is reference to the fact that the Commission' s findings from on-the-spot inspections were "quite representative". They were fully confirmed by the inspections in 1985. At 2.5 of the opinion, it is again complained that national instead of Community rules were being applied to the minimum size of certain fish. That objection is extended to 1985 and, in reference to a letter from the French authorities of 28 May 1985, to the application of the rules on mesh size. The French Government' s reply, moreover, was wholly in line with such an understanding of the complaints, inasmuch as it basically explained its attitude to the application of the said technical measures of conservation and referred to an inspection carried out in 1986 and likewise to certain instructions to the officials responsible for inspections which had been given or were in the course of preparation.

27. It may therefore be stated that in relation to the "organizational part" of the complaint previously defined there is concordance between the letter of formal notice, the reasoned opinion and the application to the Court.

28. For the sake of completeness, let me say a few words on the question of certain changes in the substance of the Community provisions. In its reply of 21 January 1987 to the reasoned opinion, the French authorities stated that Regulation No 3094/86 had in certain respects somewhat diluted the requirements of the previous regulation, Regulation No 171/83. That statement refers to the minimum size of fish(22) and the prescribed minimum mesh size.(23) In the view of the French authorities, those amendments reconciled the requirements of Community law and French practice on those issues (to what extent is not said). That raises the question whether the application to the Court on those issues is inadmissible. In that respect, it is sufficient to observe that the said amendments entered into force only on 1 January 1987, that is more than four months after 18 August 1986 when the period laid down in the reasoned opinion expired. The Court has consistently held, however, that the admissibility of an action for infringement of the Treaty depends only on whether the Member State has not complied with its obligations on the expiry of that time-limit.(24)

29. (b) As far as the actual and specific conduct of the inspections is concerned, the problem of agreement between the subject-matter of the pre-litigation procedure and that of the application to the Court presents itself rather differently. There is no doubt that during the entire pre-litigation procedure the Commission referred in that respect to alleged deficiencies said to have been brought to light on the inspections by the Commission' s officials. On this point, however, it might be thought that the deficiencies referred to in the application, in so far as they concern the period after the issue of the reasoned opinion (up to and including 1987), are not the same as those which were the subject-matter of the pre-litigation procedure. I think, however, that in that respect we can rely on the case-law of the Court which in such cases affirms that the subject-matter of the pre-litigation procedure and that of the application are, as required, identical where the circumstances complained of, if they have arose after the end of the pre-litigation procedure, are "of the same kind" as those underlying that procedure.(25) Since there has been no change in the Commission' s complaint that there was inadequate monitoring of infringements by fishermen or that monitoring was based on rules other than those of the Community with the corresponding consequences as regards prosecution in respect of those infringements, the relevant deficiencies are of "the same kind", irrespective of when they occur. In addition, there is the fact that the second part of the complaint, which relates to individual instances of inadequate monitoring, is inseparably connected to the first part. As is apparent from my observations on the first part, the Commission regards the individual deficiencies in inspection not as the consequence of individual disobedience in the post of the particular officials, but as a consequence of inadequate organization by the authority responsible for monitoring. There is thus a connection between the individual cases of adequate inspection inasmuch as they are attributed to a common cause. France could thus confine its defence to the first part of the complaint because that part automatically also covers the second. That is precisely how the defendant Member State reacted, not only in its letter of formal notice(26) and the reasoned opinion(27) but also in the defence to the action.(28)

30. (c) As regards the failures to take action, as a result of inadequate monitoring, in respect of infringements by fishermen, the considerations put forward on the previous point apply mutatis mutandis. In that respect, it is sufficient to observe that the Commission, in its letter of formal notice(29) and in its reasoned opinion,(30) took the view that inspections were necessary in order to ensure compliance with the measures of conservation (which also includes action in respect of infringements, as I have already explained). It is, moreover, obvious, and requires no further explanation, that where there is inadequate monitoring action in respect of infringements is also not ensured to the requisite extent.

31. 4. On the basis of those considerations it must be held that the application to the Court, with its subject-matter as defined above, is admissible in its entirety.

II - The merits

32. As regards the merits, it only remains to consider whether the Commission, on which the burden of proof lies,(31) has succeeded in proving infringement of the Treaty.

33. 1. Following on from my observations on the subject-matter and the admissibility of the action, I should like to make a general remark on the situation as regards evidence in relation to the three parts of the subject -matter of the action. I have already said that the Commission charges France with individual deficiencies in inspections and in taking action precisely in so far as these are the consequence of inadequate organization. In my opinion, the Commission' s application must be allowed if the alleged deficiencies in organization are proved, without its being necessary for the individual cases resulting from those deficiencies to be specifically proved. These cases are the necessary consequence of the deficiencies in organization, just as are for example infringements by national authorities of the provisions of directives which the state concerned has not yet transposed into its law. That is so a fortiori in the present case, since France itself admitted in the pre-litigation procedure that many fishermen were loath to accept action by the national officials to implement the Community rules. It is precisely in such circumstances that, where the organization is imperfect and in particular there are no clear directions to the officials, there will necessarily be deficiencies in inspections and in action taken in respect of infringements.

34. 2. From that point of view, I should like to turn to the individual technical measures of conservation and consider to what extent France has failed to fulfil its duty to ensure proper monitoring.

35. (a) That seems to me from the outset proved in respect of the provisions on the minimum mesh size and minimum size of fish, for the French authorities admitted in the pre-litigation procedure that inspection was on the basis of national rules which were less strict than those of the Community. Both those admissions emerge from a letter from the Secretary of State responsible for maritime matters of 28 May 1985. According to that letter, discrepancies of up to 5 mm are accepted in the minimum mesh size. As regards the minimum size of fish, action was to be taken in respect of hake only if it was "obviously" undersized, namely of a length of between 15 and 25 cm, whereas in Annex V to Regulation No 171/83 the minimum size specified is 30 cm.

36. It is further apparent from that letter that rules of that kind applied not only to a small part of the French coastal waters but had been introduced with respect to a very wide geographical area.(32)

37. It is apparent from the reply of the French authorities of 21 January 1987 to the Commission' s observations that that infringement lasted until after the expiry of the period laid down in the reasoned opinion. The Commission has stated in the reasoned opinion(33) that, according to information in its possession, the tolerances referred to above in relation to mesh size and minimum size of fish were still being applied. The reply from the French authorities refers to the amendments to those rules made by Regulation No 3094/86. It then stated on that point:

"Le gouvernement français estime donc qu' en la matière son attitude a évité des troubles qui auraient retardé la remise en ordre nécessaire d' une activité essentielle pour certaines régions françaises."

38. In so far as it emerges from that statement that in the view of the French Government the action of the French authorities in relation to the two measures of conservation was in accordance with Community law since the introduction of Regulation No 3094/86, this would be a circumstance without any relevance to the merits of the action, just as it would be irrelevant to its admissibility, since it arose long after the expiry of period laid down by the Commission in its reasoned opinion.(34)

39. (b) There is no express admission of that kind in respect of the two other technical measures of conservation (attachments to nets (devices) and restrictions on by-catches). However, I consider the infringement proved, for it is apparent that the defendant Member State' s inspectorate did not give the officials acting on the ground all the information and directions necessary for due monitoring.

40. First, it may be observed that in its answer to the letter of formal notice France queried the Commission' s complaints only to the extent(35) that it questioned whether the facts found by the Commission' s inspectors were representative. The authors of the letter thus do not attempt to deprive - positively - the Commission' s complaints of their force by evidence of the measures actually taken (which would easily have been possible if France had complied with its obligations in that respect) but content themselves - in a negative manner - with arguments in respect of the probative force of the Commission' s findings. The same is true mutatis mutandis of the defence.

41. Thus, the Commission' s complaints are not disputed either in the answer to the letter of formal notice or in the reply to the reasoned opinion. In particular, it is not alleged that France has complied with the relevant obligations.

42. Although France' s manifestly evasive attitude on both points suggests that the infringement alleged by the Commission actually took place, it does not however allow to any compelling conclusion in that respect and thus does not in itself amount to proof.

43. Such a conclusion may, however, be drawn in conjunction with the defendant Member State' s statements and the documents submitted by it in relation to the measures of organization which it actually adopted.

44. In the reply of 22 January 1985 to the Commission' s letter of formal notice, that is nearly two years after Regulation No 171/83 entered into force, it is mentioned that the knowledge of the department responsible for monitoring would be brought up-to-date; since this measure would be publicized, the situation in relation to monitoring would gradually improve.(36) That shows that in any event until that date not all the requisite measures had been adopted. That situation lasted until after the expiry of the period prescribed by the Commission in the reasoned opinion. In the reply of 21 January 1987 to that opinion it is stated at the beginning, after a brief rehearsal of the Commission' s complaints, that it is not denied that deficiencies may have arisen here and there; it was however not possible to implement the Community provisions within a year of their entry into force. After a statement of position as regards the amendments effected by Regulation No 3094/86 and their alleged consequences as regards the lawfulness of the French practice,(37) it is stated at the end of the letter that the French Government was in the process of preparing very precise instructions to its departments in order to ensure as soon as possible that the conservation provisions would be better observed. Up to that point, therefore, such precise instructions had not been given to the departments.

45. That those statements relate, at least in addition, to the problem of by-catches and attachments is apparent from the defence.(38) Mention is then made of an information and inspection campaign which, in the view of the French Government, satisfies its duty to act under Article 1 of Directive 2241/87. The letter which is annexed to the defence as evidence of the measures adopted (annex II) is, however, belated (it is dated 30 June 1984) and refers only to the Community provisions on mesh size.

46. The general picture which arises from all the foregoing is finally confirmed by the summary of the reports of the Commission' s officials mentioned at the beginning of this Opinion. It would take us too far to go through and comment on all the documents produced by the Commission. I shall content myself with certain references to the findings made in 1987, after the expiry of the period laid down in the reasoned opinion (findings which, it seems to me, are moreover representative of the earlier period).

47. First, it is apparent from the statements of some of those involved that the instructions to the officials responsible for monitoring were not in accordance with the requirements. Thus, on page 17 of the said document(39) there is a statement from a "chef du quartier" who claims that for three years he has had no instructions from the competent authorities; he was attempting to implement the rules by means of persuasion, which could take five years. From that I conclude that, at that time, that implementation was not the subject of sufficiently clear instructions. That accords with the fact that the authors of the report mentioned a little later in connection with another inspection(40) that the powers and knowledge of the French monitoring officials were insufficient. If France had fulfilled its duty with regard to the requisite information and instructions there would be no explanation for the statement of a "commandant"(41) that he had instructions not to inspect certain fishing vessels.

48. Secondly, these general indications are confirmed, particularly as regards the question of by-catches, by several observations in the document(42) produced in respect of inspections for 1987.

49. 3. The conclusion to be drawn from all this, namely that the infringement of the Treaty with which France is charged is proved, is not refuted by any of the objections of the defendant Member State.

50. (a) First, it is necessary to discuss the arguments, already mentioned at the beginning of my Opinion with regard to the right to a fair hearing, according to which the content of the Commission' s document with which I have just dealt should not be accepted as evidence since France is not able to identify the individual incidents and therefore cannot effectively defend itself. In the given circumstances I do not consider that argument to be valid. In order to conclude that there are insufficient measures of organization the Court does not have to be persuaded that individual cases of deficiency in monitoring have been established. In order to undermine the Commission' s complaints from the point of view of evidence two avenues were open to the defendant Member State, even without an identification in the sense for which it contended. First, it would have been possible to produce to the Court all the relevant instructions and information (and possibly, also the statutory provisions forming the basis for the action by the competent authorities). Had this shown that the necessary organization measures had been adopted - in good time - the application would have had to be dismissed.

51. The result would have been the same if, according to the circumstances, it was apparent from reports which France could have produced (even after removing names or in summary form) that there were no deficiencies in the inspections carried out by the French officials during the relevant period, in particular the inspections carried out in conjunction with the officials of the Commission. In view of the logical relationship between organization on the one hand and the conduct of inspections and the taking of action on the other, the production of such documents would have robbed the matters listed above of their probative force.

52. The said arguments of the French Government must therefore be rejected.

53. (b) From that point of view, the French Government' s arguments must still be considered with respect to two points relating to proof of an infringement of the Treaty. It produced two tables giving an overview of certain inspections.

54. (aa) The first table is to be found in the reply of 21 (French text 20) January 1987 to the reasoned opinion and contains the results of inspections carried out between 1 September and 1 November 1986 in relation to problems concerning mesh size and the minimum size of fish. It is sufficient to observe that that action was undertaken after the expiry of the period which the Commission laid down in the reasoned opinion, that it affects only a limited area and that, finally, the number of the inspection measures, of the infringements found and the actions taken is irrelevant, since France based its action, in regard to mesh size and the minimum size of fish, on national rules instead of Community rules.

55. (bb) As regards the table submitted with the defence and giving information on the results of inspections in 1986, that, too, in no way puts in doubt the finding of the breach of the Treaty committed by the defendant. That table gives only the number, expressed in absolute terms and as a percentage (of what?), of infringements found. The present case, however, is concerned with infringements which were not found (or action taken in respect of them), although they could have been found and would have been found if the defendant had fulfilled its obligations.

56. 4. The breach of the Treaty alleged by the Commission is thus established so far as the facts are concerned. That finding is obviously not affected in law by the fact that the defendant Member State, as it alleges in particular in the pre-litigation procedure, might have feared difficulties in applying the Community provisions at the social level or that it had and has doubts about the justification of certain rules. All that comes within those internal circumstances on which, as the Court has consistently held, a Member State may not rely in order to avoid its obligations under Community law.

C - Conclusion

57. For all those reasons, I propose that the Commission' s application should be allowed and the French Republic ordered to pay the costs.

(*) Original language: German.

(1) OJ 1983 L 24, p. 14.

(2) Council Regulation of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (OJ 1986 L 288, p. 1).

(3) Articles 2 to 6 of Regulation No 171/83; Articles 2 and 3 of Regulation No 3094/86.

(4) Article 7 of Regulation No 171/83; Article 4 of Regulation No 3094/86.

(5) Title II of Regulation No 171/83; Article 2 of Regulation No 3094/86.

(6) Title III of Regulation No 171/83; Title II of Regulation No 3094/86.

(7) Council Regulation of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States (OJ 1982 L 220, p. 1).

(8) Council Regulation of 23 July 1987 establishing certain control measures for fishing activities (OJ 1987 L 207, p. 1).

(9) The wording is different but the difference is irrelevant in the present case. Since 1 January 1987 (see Regulation No 4027/86 (OJ 1986 L 376, p. 4), the monitoring covers "fishing activity and related activities" and includes fishing vessels of third countries (see the second recital in the preamble to the amending regulation).

(10) As justification for this it stated that confidentiality was indispensible in the interests of the effectiveness of the work of the Commission' s monitoring officials in the future and in order to protect the rights of third parties referred to in the reports.

(11) A number of passages from the relevant documents are quoted in the language of the case since there is no official German translation.

(12) Similarly, p. 8 of the application at 3.3, p. 10 at 5.1, p. 12, the first sentence of the second paragraph.

(13) See p. 4 of the application at 2.3 and p. 12, second paragraph.

(14) See, for example, p. 9 of the application where objection is made that although the French authorities in their letter of 21 January 1987 had referred to systematic action which had been introduced (that is organization measures) nevertheless the inspections carried out by the Commission between February and September 1987 (monitoring the actual implementation) had revealed extensive defects conflicting with the promise in the said letter.

(15) Underlined in the original; the Commission is referring here to the first recital in the preamble to and Article 1 of Regulation No 170/83.

(16) P. 9, first paragraph, of the application.

(17) See, for example, the judgment in Case 298/86 Commission v Belgium [1988] ECR 4343, paragraph 10.

(18) Judgment in Case 31/69 Commission v Italy [1970] ECR 25, paragraph 13; judgment in Case 211/81 Commission v Denmark [1982] ECR 4547, paragraph 9.

(19) Judgment in Case 211/81, ibid., paragraph 8; judgment in Case 229/87 Commission v Hellenic Republic [1988] ECR 6347, paragraph 12.

(20) Judgment in Case 211/81, ibid., paragraph 14; judgment in Case 298/86, ibid., paragraph 10.

(21) My emphasis.

(21)

(22) See Annexes V and VI to Regulation No 171/83; Annexes II and III to Regulation No 3094/86.

(23) See Annexes I to IV to Regulation No 171/83; Annex I to Regulation No 3094/86.

(24) See the judgment in Case 39/72 Commission v Italy [1973] ECR 101, paragraphs 9 and 11, the judgment in Case 103/84 Commission v Italy [1986] ECR 1759, paragraphs 8 and 9, and the judgments in Case 54/84 Commission v Italy [1987] ECR 2717, paragraph 6.

(25) See judgments cited in footnote 24.

(26) See paragraph 24.

(27) See page 2 of the reply of 21 January 1987 where it is stated: "(Le gouvernement français) a pris sur lui de donner des consignes à ses services afin d' éviter tout risque de désordre." On the same page, there is mention of "systematic action" in 1986 which is alleged to have brought about certain improvements; the said improvements are illustrated by a table of individual inspections which, in the opinion of the French authorities, shows the results of the action in a particular area.

(28) On page 5 of the defence, the relevance ("caractère significatif") of the Commission' s findings are queried. On page 6 it is stated that an information and inspection campaign of which previous notice had been given was carried out; on that subject the French Government produces a letter in which the prefects of the relevant departments were referred to Community provisions on mesh size. It is then stated: "Cette action, dont le gouvernement français considère qu' elle répond à l' obligation de moyen découlant de l' article 1er du règlement n 2241/87, n' a, d' ailleurs, pas été sans résultat, comme le montre le tableau figurant en annexe 3."

(29) Second paragraph; see also the claim for relief in the application: "contrôle garantissant le respect".

(30) Under 1.1.

(31) See, essentially, the judgments in Cases 96/81 and 97/81 Commission v Netherlands [1982] ECR 1791 and 1819; most recently confirmed by the judgment in Case 244/89 Commission v France [1991] ECR I-163, paragraph 35.

(32) See page 3 of the letter where it is stated: "Je me rendrai prochainement à Bordeaux pour mettre en oeuvre un dispositif analogue à celui engagé en Bretagne et dans les pays de la Loire sur la côte aquitaine et basque française."

(33) See p. 5.

(34) Case 200/88 Commission v Hellenic Republic [1990] ECR I-4299, paragraph 13.

(35) Except in respect of the minimum size of fish, which I have dealt with in the previous point.

(36) See above, paragraph 24.

(37) See above, paragraph 28.

(38) See page 6.

(39) Under 1987-IV-C.

(40) See p. 19, under 1987-VII-C.

(41) Ibid. (previous footnote).

(42) 1987-I-A; -II-B; -IX-B; -IX-C.

Case C-64/88