CELEX: C2003/239/06
Language: en
Date: 2003-10-04 00:00:00
Title: Case C-335/03: Action brought on 31 July 2003 by Portuguese Republic against Commission of the European Communities

C 239/4                EN                         Official Journal of the European Union                                          4.10.2003
      —     by failing to impose a provisional prohibition of             Action brought on 31 July 2003 by Portuguese Republic
            fishing on vessels flying its flag or registered in its           against Commission of the European Communities
            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;                                                        (Case C-335/03)
      —     by failing to bring criminal or administrative pro-
            ceedings against the captains or any other persons                                     (2003/C 239/06)
            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,
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of Justice of the European
      the Portuguese Republic has failed to fulfil its obligations        Communities on 31 July 2003 by the Portuguese Republic,
      in the sphere of the management and monitoring of                   represented by Luís Fernandes, acting as Agent, and Carlos
      fishing quotas;                                                     Botelho Moniz and Eduardo Maia Cadete, lawyers, with an
                                                                          address for service in Luxembourg.
2)    order the Portuguese Republic to pay the costs.
                                                                          The applicant claims that the Court should:
Pleas in law and main arguments
Portugal has failed to fulfil completely its Community obli-              —     annul Commission Decision No 2003/364/EC ( 1) of
gations concerning rules for the use of its catch quotas,                       15 May 2003 excluding from Community financing
monitoring and inspection, proceedings against the fishermen                    certain expenditure incurred by the Member States under
in question and the setting-up of a computerised data-base.                     the Guarantee Section of the European Agricultural
During the fishing years 1994 to 1996, the Portuguese                           Guidance and Guarantee Fund (EAGGF) so far as it
Republic:                                                                       concerns expenditure relating to Portugal;
a)    infringed Article 9(2) of Council Regulation (EEC) No               —     order the defendant institution to pay the costs.
      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;
b)    failed to ensure sufficient monitoring of fishing activities
      and inspection of the fishing fleet and the unloading and           Pleas in law and main arguments
      recording of catches;
                                                                          —     Error in law as a result of the misapplication of Article 6(5)
c)    infringed Article 21 of Council Regulation (EEC) No
                                                                                of Regulation (EEC) No 3887/92. The Portuguese Govern-
      2847/93 which lays down obligations relating to suspen-
                                                                                ment is of the view that that rule was complied with in
      sion of fishing;
                                                                                the year in question, since applications for ‘animal’ aid
                                                                                and the relevant checks must be understood and assessed
d)    infringed the obligation to bring criminal or administrat-                from the point of view of the unicity of the holding, that
      ive proceedings against the natural or legal persons                      is, taken globally ‘animal’ aid schemes as a whole
      responsible for overfishing;                                              (rather than each of the schemes independently, as the
                                                                                Commission appears to maintain). Thus:
e)    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-                 —     Portugal adopted an approach centring on holdings,
      ing and verification of data resulting from those obli-                         devising an integrated application common to the
      gations and to create a computerised data-base in which                         various ‘animal’ aid schemes available under the
      those data are stored.                                                          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.
 ---pagebreak--- 4.10.2003             EN                        Official Journal of the European Union                                          C 239/5
     —    Article 6(5) of Regulation (EEC) No 3887/92, in its           —     Breach of the obligation to provide reasons enshrined in
          wording in force at the material time, did not                      Article 253 of the EC Treaty: the Commission’s decision
          distinguish between the various aid schemes so far                  does not indicate what aspect of the conduct of the
          as concerned the obligation to check 5 % of the                     Portuguese authorities was contrary to Community law
          ‘animal’ aid applications during the retention period,              nor which Community legislation was infringed thereby.
          so that, contrary to the Commission’s contention,                   The decision therefore does not fulfil the obligation to
          the Portuguese authorities acted in conformity with                 provide reasons. That requirement is stricter where at
          the provision in issue.                                             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
                                                                              obligation to provide reasons is essential in order to
                                                                              protect the rights of defence of the person or body
                                                                              affected by the adverse consequences flowing from the
     —    by applying in this case Article 6(5) of Regulation                 measure.
          No 3887/92 as amended by Regulation (EC)
          No 2801/99, rather than the version in force at
          the material time, the Commission is applying
          retrospectively a new provision, which is contrary            (1 ) OJ 2003 L 124, p. 45.
          to the general principles of law common to the
          Member States.
—    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                 Action brought on 4 August 2003 by the Commission
     the suckler cow herd:                                              of the European Communities against the Kingdom of
                                                                                                    Denmark
                                                                                                 (Case C-343/03)
     —    The alleged irregularities regarding the identification
          of the animals, which the Commission claims to                                         (2003/C 239/07)
          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. In the alternative, the              An action against the Kingdom of Denmark was brought
          Portuguese Government takes the view that the                 before the Court of Justice of the European Communities
          irregularities alleged by the Commission are irrel-           on 4 August 2003 by the Commission of the European
          evant, since Portugal has complied and continues to           Communities, represented by H.P. Hartvig, acting as Agent,
          comply with the rules relating to the identification          with an address for service in Luxembourg.
          of bovine animals.
                                                                        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                —    by failing to adopt detailed rules for the utilisation
          bore producer markings bearing an identification                         of the quotas allocated to Denmark,
          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                     —    by failing to ensure compliance with the EC pro-
          more than once in respect of the same animal.                            visions on the conservation of fishery resources by
          Again in that respect the Commission erred in its                        means of monitoring of fishing activity, appropriate
          assessment of the relevant facts by failing to take                      inspections of landings and registration of catches,
          account of the actual circumstances in which the                         and criminal or administrative proceedings against
          said practice occurred.                                                  those responsible for overfishing,