Case C-90/03: Action brought on 28 February 2003 by the Kingdom of Spain against the Council of the European Union
Date: 2003-06-07
Institutions: Court of Justice
Subjects: Council of the European Union, Spain, action for annulment (EU), fishing industry, fishing vessel, infringement of EU law

C 135/8

EN

Official Journal of the European Union

7.6.2003

Nor is there is any objective justification for that discrimi-
nation. The general rule is the full applicability of all the
Community stock to new Member States from the very
moment of accession and the derogations from that full
applicability contained in an Act of Accession are always
of a temporary nature and must be interpreted strictly.
To extend those derogations beyond the transitional
period provided for in the Act of Accession is to disregard
the very essence of
those derogations, namely their
transitional and limited exceptional nature, and their
purpose, which is solely to permit the gradual integration
of a new Member State into the Community.

— Infringement of the Act of Accession of Spain: the non-
allocation to Spain in the contested regulation of part of
the quotas in the Community waters of the North Sea
and the Baltic Sea which have been allocated since Spain’s
accession has the effect of extending the transitional
period beyond that provided for in the Act and of thus
infringing its provisions.

It cannot be overlooked that had it not been for the
transitional period in Article 166 of the Act of Accession,
Spain would have participated in the allocation of new
quotas since 1986, on the basis of three factors:

— its historical catches during the years 1973/1978,
i.e. the period taken into consideration when the
principle of relative stability was first established;

Action brought on 28 February 2003 by the Kingdom of
Spain against the Council of the European Union

(Case C-90/03)

(2003/C 135/12)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 28 February 2003 by the Kingdom of Spain, represented
by N. Díaz Abad, Abogado del Estado, with an address for
service in Luxembourg.

The applicant claims that the Court should:

1.

annul Article 9(1)(b) of Regulation 2792/1999 (1) laying
down the detailed rules and arrangements regarding
Community structural assistance in the fisheries sector,
as amended by Council Regulation 2369/2002 of
20 December 2002 (2);

— its catches of the same species in adjoining zones;

and

2.

order the Council to pay the costs.

— the need to rely on by-catches.

— Infringement of Article 20(2) of Council Regulation
(EC) No 2371/2002 (2) of 20 December 2002 on the
conservation and sustainable exploitation of fisheries
resources under the Common Fisheries Policy: upon
expiry of the transitional period, the new fishing oppor-
tunities allocated in the waters in question between
1992 and 1998 must be allocated taking into account
the interests of each Member State and therefore Spain’s
too.

( 1) OJ L 356, 31.12.2002, p. 12.
( 2) OJ L 358, 31.12.2002, p. 59.

Pleas in law and main arguments

— Breach of essential procedural requirements: Spain con-
tends that the text of Article 9(1)(b) of Regulation 2792/
1999, as amended by Regulation 2369/2002, published
in Official Journal L 358 of 31 December 2002, is not
the text approved by the Council. In the present case, the
text approved by the Council was that contained in the
final compromise document,
i.e. the one bearing the
number SN 113/02, which tacitly amended the document
containing the second compromise, SN 105/02, by
providing the possibility of applying a basic weighting of
1:1.35 to vessels of more than 100 GT, which implies
that that weighting would also apply to vessels of more
than 400 GT and, therefore, the possibility of granting
aid for renewal this vessels of that type.

— Infringement of Article 254 EC: publication must be
limited to reproducing the text of the measure, as adopted
by the Organ with legislative or regulatory power. What

7.6.2003

EN

Official Journal of the European Union

C 135/9

is not possible is the introduction, by publication, of
amendments of the text approved by the legislature since
to do so presupposes a usurpation of its powers.

limits which do not exist either for access by French
vessels to Spanish coastal waters or for access by vessels
of the remaining Member States to the coastal waters of
other Member States.

( 1) OJ L 337, 30.12.1999, p. 10.
( 2) OJ L 358, 31.12.2002, p. 49.

Action brought on 28 February 2003 by the Kingdom of
Spain against the Council of the European Union

(Case C-91/03)

(2003/C 135/13)

— Infringement of the Act of Accession of Spain: following
the abolition of limits on access by Spanish vessels to
waters under French jurisdiction outside the 12-mile zone
upon expiry of the transitional period provided for in the
Act of Accession, there is no justification for maintaining
the 12-mile derogations. There are no specific measures
for access to pelagic species in that zone that might
require special management and, furthermore, catches of
those pelagic species are taken by the same type of vessels
(Cerco).

In short, the maintenance of a restrictive and discriminat-
ory arrangement for access by Spanish vessels to the
waters of
the French 12-mile zone in the Atlantic
beyond the transitional period provided for in the Act of
Accession, and a derogation from equivalent rules on
access to French waters in the Atlantic outside the
12 miles in issue, are contrary to the restrictive and
limited nature required of any exception to a general rule
of the Treaty, a fortiori when what is being limited is a
principle as essential as the principle of non-discrimi-
nation on ground of nationality and, infringes the very
essence of the provisions of an Act of Accession.

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 28 February 2003 by the Kingdom of Spain, represented
by Nuria Díaz Abad, Abogado del Estado, with an address for
service in Luxembourg.

(1) OJ L 358, 31.12.2002, p. 59.
(2) Council Regulation of 20 December 1992 establishing a Com-
fisheries and aquaculture, OJ L 389,

munity system for
31.12.1992, p. 1.

The applicant claims that the Court should:

— annul point 6 of Annex I to Council Regulation 2371/
2002 (1) of 20 December 2002 on the conversation and
sustainable exploitation of fisheries resources under the
Common Fisheries Policy.

— order the Council to pay the costs.

Action brought on 4 March 2003 by the Kingdom of
Spain against the Council of the European Union

Pleas in law and main arguments

— Infringement of

the principle of non-discrimination:
during the negotiations for Regulation 2371/2002, Spain
sought amendment of point 6 of Annex I in order to
remove the restriction applying to its vessels in the 6 to
12 mile zone of the Atlantic waters off France deriving
from the Act of Accession and to balance the conditions
of access to that zone with those enjoyed by French
vessels in Spanish waters. However, the Council decided
to leave point 6 of Annex I unaltered by comparison with
that recognised in Regulation 3760/92 (2) and thus to set

(Case C-100/03)

(2003/C 135/14)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 4 March 2003 by the Kingdom of Spain, represented
by N. Díaz Abad, Abogado del Estado, with an address for
service in Luxembourg.