CELEX: C2003/135/12
Language: en
Date: 2003-06-07 00:00:00
Title: Case C-90/03: Action brought on 28 February 2003 by the Kingdom of Spain against the Council of the European Union

C 135/8                 EN                          Official Journal of the European Union                                          7.6.2003
      Nor is there is any objective justification for that discrimi-        Action brought on 28 February 2003 by the Kingdom of
      nation. The general rule is the full applicability of all the               Spain against the Council of the European Union
      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.                                        (Case C-90/03)
      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                                        (2003/C 135/12)
      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            An action against the Council of the European Union was
      the quotas in the Community waters of the North Sea                   brought before the Court of Justice of the European Communi-
      and the Baltic Sea which have been allocated since Spain’s            ties on 28 February 2003 by the Kingdom of Spain, represented
      accession has the effect of extending the transitional                by N. Díaz Abad, Abogado del Estado, with an address for
      period beyond that provided for in the Act and of thus                service in Luxembourg.
      infringing its provisions.
      It cannot be overlooked that had it not been for the
      transitional period in Article 166 of the Act of Accession,           The applicant claims that the Court should:
      Spain would have participated in the allocation of new
      quotas since 1986, on the basis of three factors:
                                                                            1.    annul Article 9(1)(b) of Regulation 2792/1999 ( 1) laying
                                                                                  down the detailed rules and arrangements regarding
      —     its historical catches during the years 1973/1978,                    Community structural assistance in the fisheries sector,
            i.e. the period taken into consideration when the                     as amended by Council Regulation 2369/2002 of
            principle of relative stability was first established;                20 December 2002 (2);
                                                                            2.    order the Council to pay the costs.
      —     its catches of the same species in adjoining zones;
            and
      —     the need to rely on by-catches.
                                                                            Pleas in law and main arguments
—     Infringement of Article 20(2) of Council Regulation
      (EC) No 2371/2002 (2) of 20 December 2002 on the                      —     Breach of essential procedural requirements: Spain con-
      conservation and sustainable exploitation of fisheries                      tends that the text of Article 9(1)(b) of Regulation 2792/
      resources under the Common Fisheries Policy: upon                           1999, as amended by Regulation 2369/2002, published
      expiry of the transitional period, the new fishing oppor-                   in Official Journal L 358 of 31 December 2002, is not
      tunities allocated in the waters in question between                        the text approved by the Council. In the present case, the
      1992 and 1998 must be allocated taking into account                         text approved by the Council was that contained in the
      the interests of each Member State and therefore Spain’s                    final compromise document, i.e. the one bearing the
      too.                                                                        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
( 1) OJ L 356, 31.12.2002, p. 12.                                                 than 400 GT and, therefore, the possibility of granting
( 2) OJ L 358, 31.12.2002, p. 59.                                                 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
 ---pagebreak--- 7.6.2003               EN                       Official Journal of the European Union                                            C 135/9
      is not possible is the introduction, by publication, of                  limits which do not exist either for access by French
      amendments of the text approved by the legislature since                 vessels to Spanish coastal waters or for access by vessels
      to do so presupposes a usurpation of its powers.                         of the remaining Member States to the coastal waters of
                                                                               other Member States.
( 1) OJ L 337, 30.12.1999, p. 10.                                       —      Infringement of the Act of Accession of Spain: following
( 2) OJ L 358, 31.12.2002, p. 49.                                              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-
Action brought on 28 February 2003 by the Kingdom of                           ory arrangement for access by Spanish vessels to the
      Spain against the Council of the European Union                          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
                         (Case C-91/03)                                        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
                        (2003/C 135/13)                                        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-            (1 ) OJ L 358, 31.12.2002, p. 59.
ties on 28 February 2003 by the Kingdom of Spain, represented           (2 ) Council Regulation of 20 December 1992 establishing a Com-
by Nuria Díaz Abad, Abogado del Estado, with an address for                  munity system for fisheries and aquaculture, OJ L 389,
service in Luxembourg.                                                       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
                                                                                                 (Case C-100/03)
Pleas in law and main arguments
                                                                                                 (2003/C 135/14)
—     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           An action against the Council of the European Union was
      of access to that zone with those enjoyed by French               brought before the Court of Justice of the European Communi-
      vessels in Spanish waters. However, the Council decided           ties on 4 March 2003 by the Kingdom of Spain, represented
      to leave point 6 of Annex I unaltered by comparison with          by N. Díaz Abad, Abogado del Estado, with an address for
      that recognised in Regulation 3760/92 (2) and thus to set         service in Luxembourg.