Case C-335/03: Action brought on 31 July 2003 by Portuguese Republic against Commission of the European Communities
Date: 2003-10-04
Institutions: Court of Justice
Subjects: EAGGF Guarantee Section, European Commission, Portugal, action for annulment (EU), aid system, production aid

C 239/4

EN

Official Journal of the European Union

4.10.2003

— by failing to impose a provisional prohibition of
fishing on vessels flying its flag or registered in its
territory when the quota allocated to it had been
exhausted, and by having finally prohibited fishing
when its quota had already been greatly exceeded in
the fishing years 1994 to 1996;

— by failing to bring criminal or administrative pro-
ceedings against the captains or any other persons
responsible for overfishing;

— by failing to ensure the effective operation of a
validation system which included cross-checking
and verification of data by means of a computerised
data-base,

the Portuguese Republic has failed to fulfil its obligations
in the sphere of the management and monitoring of
fishing quotas;

2)

order the Portuguese Republic to pay the costs.

Action brought on 31 July 2003 by Portuguese Republic
against Commission of the European Communities

(Case C-335/03)

(2003/C 239/06)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 31 July 2003 by the Portuguese Republic,
represented by Luís Fernandes, acting as Agent, and Carlos
Botelho Moniz and Eduardo Maia Cadete, lawyers, with an
address for service in Luxembourg.

Pleas in law and main arguments

The applicant claims that the Court should:

Portugal has failed to fulfil completely its Community obli-
gations concerning rules for the use of its catch quotas,
monitoring and inspection, proceedings against the fishermen
in question and the setting-up of a computerised data-base.
During the fishing years 1994 to 1996,
the Portuguese
Republic:

— annul Commission Decision No 2003/364/EC (1) of
15 May 2003 excluding from Community financing
certain expenditure incurred by the Member States under
the Guarantee Section of
the European Agricultural
Guidance and Guarantee Fund (EAGGF) so far as it
concerns expenditure relating to Portugal;

a)

b)

c)

d)

e)

infringed Article 9(2) of Council Regulation (EEC) No
3760/92 of 20 December 1992 establishing a Com-
munity system for fisheries and aquaculture, which
requires the Member States to adopt rules for the use of
the quotas allocated to them;

— order the defendant institution to pay the costs.

failed to ensure sufficient monitoring of fishing activities
and inspection of the fishing fleet and the unloading and
recording of catches;

Pleas in law and main arguments

infringed Article 21 of Council Regulation (EEC) No
2847/93 which lays down obligations relating to suspen-
sion of fishing;

infringed the obligation to bring criminal or administrat-
ive proceedings against the natural or legal persons
responsible for overfishing;

infringed Article 19(1) and (2) of Regulation No 2847/
93, which requires the Member States to establish a
validation system comprising, in particular, cross-check-
ing and verification of data resulting from those obli-
gations and to create a computerised data-base in which
those data are stored.

— Error in law as a result of the misapplication of Article 6(5)
of Regulation (EEC) No 3887/92. The Portuguese Govern-
ment is of the view that that rule was complied with in
the year in question, since applications for ‘animal’ aid
and the relevant checks must be understood and assessed
from the point of view of the unicity of the holding, that
taken globally ‘animal’ aid schemes as a whole
is,
(rather than each of the schemes independently, as the
Commission appears to maintain). Thus:

— Portugal adopted an approach centring on holdings,
devising an integrated application common to the
various ‘animal’ aid schemes available under the
EAGGF Guarantee section, in the context of which
the checks are carried out. In the year in question,
the minimum percentage of lawful applications were
checked on the spot during the retention period.

4.10.2003

EN

Official Journal of the European Union

C 239/5

— Article 6(5) of Regulation (EEC) No 3887/92, in its
wording in force at the material
time, did not
distinguish between the various aid schemes so far
as concerned the obligation to check 5 % of the
‘animal’ aid applications during the retention period,
so that, contrary to the Commission’s contention,
the Portuguese authorities acted in conformity with
the provision in issue.

— by applying in this case Article 6(5) of Regulation
No 3887/92 as amended by Regulation (EC)
No 2801/99, rather than the version in force at
the material
the Commission is applying
retrospectively a new provision, which is contrary
to the general principles of law common to the
Member States.

time,

— Breach of the obligation to provide reasons enshrined in
Article 253 of the EC Treaty: the Commission’s decision
does not indicate what aspect of the conduct of the
Portuguese authorities was contrary to Community law
nor which Community legislation was infringed thereby.
The decision therefore does not fulfil the obligation to
provide reasons. That requirement is stricter where at
issue is the adoption of measures which impose sanctions
on or entail adverse consequences,
in particular in
financial terms, for those to whom it is addressed, as in
the present case. In those circumstances, fulfilment of the
in order to
obligation to provide reasons is essential
protect the rights of defence of the person or body
affected by the adverse consequences flowing from the
measure.

(1) OJ 2003 L 124, p. 45.

— Error of assessment of the facts with regard to the
expenditure declared by the Portuguese authorities for
1999 concerning the premium for the maintenance of
the suckler cow herd:

Action brought on 4 August 2003 by the Commission
of the European Communities against the Kingdom of
Denmark

— The alleged irregularities regarding the identification
of the animals, which the Commission claims to
have detected in checks carried out in holdings in
the Alentejo region in September 2000, are of
no relevance to the application of the flat-rate
corrections applied to expenditure in respect of
the 1999 financial year.
the
Portuguese Government takes the view that the
irregularities alleged by the Commission are irrel-
evant, since Portugal has complied and continues to
comply with the rules relating to the identification
of bovine animals.

In the alternative,

(Case C-343/03)

(2003/C 239/07)

An action against the Kingdom of Denmark was brought
before the Court of Justice of the European Communities
on 4 August 2003 by the Commission of the European
Communities, represented by H.P. Hartvig, acting as Agent,
with an address for service in Luxembourg.

The applicant claims that the Court should:

1.

declare that

— The Commission further alleges, as the basis for
applying the financial correction, that some animals
bore producer markings bearing an identification
number which was not that accorded by the com-
petent authorities, and considers that the practice
increases the risk that a premium might be paid
more than once in respect of the same animal.
Again in that respect the Commission erred in its
assessment of the relevant facts by failing to take
account of the actual circumstances in which the
said practice occurred.

— by failing to adopt detailed rules for the utilisation

of the quotas allocated to Denmark,

— by failing to ensure compliance with the EC pro-
visions on the conservation of fishery resources by
means of monitoring of fishing activity, appropriate
inspections of landings and registration of catches,
and criminal or administrative proceedings against
those responsible for overfishing,