Case C-87/03: Action brought on 27 February 2003 by the Kingdom of Spain against the Council of the European Union
Date: 2003-06-07
Institutions: Court of Justice
Subjects: Baltic Sea, Council of the European Union, EU waters, North Sea, Spain, action for annulment (EU), authorised catch, catch quota, fishery resources, infringement of EU law

7.6.2003

EN

Official Journal of the European Union

C 135/7

obligations under that directive, the Court (First Chamber),
composed of: M. Wathelet (Rapporteur), President of the
Chamber, P. Jann and A. Rosas, Judges; J. Mischo, Advocate
General; R. Grass, Registrar, has given a judgment on 10 April
2003, in which it:

— the Court (Fourth Chamber), composed of C.W.A. Timmer-
mans, President of Chamber, D.A.O. Edward and S. von Bahr
(Rapporteur), Judges; P. Léger, Advocate General; R. Grass,
Registrar, made an order on 6 February 2003, the operative
part of which is as follows:

1. Declares that, by failing to adopt, within the prescribed period,
all the laws, regulations and administrative measures necessary
to comply with Directive 98/8/EC of the European Parliament
and of the Council of 16 February 1998 concerning the placing
of biocidal products on the market, the French Republic has
failed to fulfil its obligations under that directive;

2. Orders the French Republic to pay the costs.

( 1) OJ C 131 of 1.6.2002.

1.

The appeal is dismissed.

2. Dieckmann & Hansen GmbH is ordered to pay the costs.

(1) OJ C 44, 16.2.2002.

ORDER OF THE COURT

(Fourth Chamber)

of 6 February 2003

in Case C-492/01 P: Dieckmann & Hansen GmbH v
Commission of the European Communities (1)

(Commission Decision 1999/244/EC of 26 March 1999
amending Decision 97/296/EC drawing up the list of third
countries from which the import of fishery products is
authorised for human consumption — Prohibition on the
importation of caviar from Kazakhstan — Non-contractual
liability of the Community — Appeal partly manifestly
inadmissible and partly unfounded)

(2003/C 135/10)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case 492/01 P: Dieckmann & Hansen GmbH, established in
Hamburg (Germany), represented by H.-J. Rabe, lawyer —
appeal against the judgment of the Court of First Instance of
the European Communities, Fifth Chamber, of 23 October
2001 in Case T-155/99 Dieckmann & Hansen v Commission
[2001] ECR II-3143, seeking to have that judgment set aside,
the other party to the proceedings being Commission of the
European Communities (Agents: G. Berscheid and M. Niejhar)

Action brought on 27 February 2003 by the Kingdom of
Spain against the Council of the European Union

(Case C-87/03)

(2003/C 135/11)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 27 February 2003 by the Kingdom of Spain, represented
by Nuria Díaz Abad, Abogado del Estado, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— annul Council Regulation (EC) No 2341/2002 (1) of
20 December 2002 fixing for 2003 the fishing oppor-
tunities and associated conditions for certain fish stocks
and groups of fish stocks, applicable in Community
waters and, for Community vessels, in waters where catch
limitations are required, in so far as it allocates certain
quotas to the Spanish fleet in the Community waters of
the North Sea and the Baltic Sea, and

— order the Council to pay the costs.

Pleas in law and main arguments

— Infringement of the principle of non-discrimination: on
completion of the transitional period on 31 December
2002, the situation of Spanish fishermen is the same as
that of fishermen of the remaining Member States and
they should enjoy equal access to waters and resources.
However, by the contested regulation, Spanish fishermen
are treated differently, since they are not allowed to fish
in the waters of the North Sea and the Baltic Sea for
virtually all the species subject to quotas.

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