CELEX: 61986CC0207
Language: en
Date: 1988-02-10
Title: Opinion of Mr Advocate General Mischo delivered on 10 February 1988. # Asociación Profesional de Empresarios de Pesca Comunitarios (Apesco) v Commission of the European Communities. # Fisheries - System of lists introduced by the Act of Accession of Spain and Portugal to the European Communities - Discrimination. # Case 207/86.

Important legal notice

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61986C0207

Opinion of Mr Advocate General Mischo delivered on 10 February 1988.  -  Asociación Profesional de Empresarios de Pesca Comunitarios (Apesco) v Commission of the European Communities.  -  Fisheries - System of lists introduced by the Act of Accession of Spain and Portugal to the European Communities - Discrimination.  -  Case 207/86.  

European Court reports 1988 Page 02151

Opinion of the Advocate-General

++++Mr President,  Members of the Court,  1 . By an application lodged in the Court Registry on 4 August 1986 the Asociacíon Profesional de Empresarios de Pesca Comunitarios ( hereinafter referred to as "Apesco ") is seeking the annulment of the decision by which the Commission approved the list of vessels flying the Spanish flag authorized to fish in the waters of the other Member States, except Portugal, during the month of July 1986 .  2 . The fishermen in the Apesco group consider that they have been the victims of systematic discrimination in relation to their competitors whose vessels appear much more frequently on the monthly lists approved by the Commission .  3 . The list for July 1986, in particular, allocated an average of 12.58 days' fishing to Apesco vessels, whereas those belonging to their main competitor, the Asociacíon de Armadores de Buques de Pesca con Derechos de Acceso a las Pesquerias de la CEE ( hereinafter referred to as "Ceepesca "), intervening with three other companies in the present proceedings in support of the Commission, obtained an average of 19.67 days' fishing .  4 . The difference in treatment complained of by the applicant originates in the Spanish authorities' application, when drawing up the draft periodical lists, of a Spanish ministerial order of 12 June 1981 which, with a view to maximizing the use of resources by adapting the number of vessels to existing fishery resources, provides for the possibility of cumulating in one  operational vessel the fishing rights of other vessels which belonged to the same shipowner, principally in the event, under prescribed conditions, of the sale, breaking-up or export of those vessels .  5 . The applicant claims, in substance, that by approving the draft lists drawn up by the Spanish authorities on the basis of rules laid down in the ministerial order, the Commission is in reality applying internal Spanish rules, thus infringing the principle that the Community has exclusive competence in the area, and is therefore responsible for the discrimination resulting from those rules .  6 . Supported by Ceepesca and the Spanish Government, which is also an intervener in the present proceedings, the Commission emphasizes first and foremost that because of the way tasks in the area are allocated between the Spanish authorities and itself, it has no power to draw up or amend the draft lists of Spanish fishermen authorized to fish in the waters of the former Community of Ten and cannot therefore be held responsible for alleged discrimination committed by the Spanish authorities when selecting the vessels appearing on the draft projects submitted by them to the Commission .  7 . Ceepesca and the Spanish Government add that in this case there has been no infringement of the Act of Accession or of the implementing regulations and that in any case the system introduced by the ministerial order of 1981 is not discriminatory .  8 . It follows from the foregoing and from the submissions and arguments of the parties, which are set out in more detail in the Report for the Hearing, that in the present action two main questions are raised, namely :  ( i ) the role of the Commission and the scope of its powers in the adoption of the periodical lists;  ( ii ) whether or not those lists are discriminatory .  9 . The second question arises however only in the alternative, that is to say only if it is concluded that before approving the draft lists the Commission ought to examine their content as regards compliance with the principle of non-discrimination .  10 . Before I begin to examine those questions of substance, a few remarks concerning the admissibility of the action are called for, since the Commission and Ceepesca expressed certain doubts in that respect, albeit without formally raising an objection of inadmissibility .  A - Admissibility  ( a ) 11 . The main object of Apesco' s action is the annulment of the decision by which the Commission approved the list of Spanish vessels authorized to fish in Community waters during July 1986 . That decision was transmitted to the Spanish authorities who informed the applicant thereof by telex on 25 June 1986 .  12 . On reading certain of the arguments put forward by the defendant and interveners in which it is claimed that the Commission has no real power in the matter but has merely been given the task of checking and formally adopting the periodical lists, one might wonder whether such a decision is indeed capable of forming the subject-matter of proceedings under Article 173 of the Treaty .  13 . In my opinion, however, the Commission' s decision of approval falls into the category of measures intended or liable to produce legal effects with regard to third parties that are capable of forming the subject-matter of such an action if the other conditions laid down in Article 173 are satisfied .  14 . In fact the various provisions leave very little room for doubt in that respect . Article 163 ( 1 ) and ( 2 ) of the Act of Accession provide that the Spanish authorities are to submit drafts of the periodical lists to the Commission which, after checking them is to approve them and forward them to the Spanish authorities and to the supervisory authorities of the other Member States concerned .  15 . Similarly, Commission Regulation ( EEC ) No 3531/85 of 12 December 1985, ( 1 ) adopted pursuant to the second paragraph of Article 163 ( 3 ), provides in Article 3 ( 1 ) and ( 5 ) that the Spanish authorities are to communicate proposals for the periodic lists to the Commission which, after examining them, is to draw up the periodic lists and forward them to the authorities concerned .  16 . Pursuant to Article 158 ( 2 ) of the Act of Accession it is only the vessels appearing on a periodical list adopted by the Commission which are to be authorized to fish during the period in question .  17 . Therefore, irrespective of the question of the precise scope of the Commission' s powers as regards the checking and examination of draft lists submitted by the Spanish authorities, it is undeniable that only after formal approval by that institution do those lists become definitive, enter into force and confer on the vessels appearing thereon the right to fish during the period indicated in the zones and under the conditions laid down .  18 . The decision by which the Commission approved the draft list submitted by the Spanish authorities for the month of July 1986 is therefore, as such, a decision against which an action may be brought under Article 173 .  19 . That being the case, it remains for me to state my views regarding the other observations concerning the admissibility of the action put forward by the Commission and the interveners .  ( b ) 20 . Ceepesca maintains that since the action was brought at a time when the list for the month of July was no longer valid but had been replaced by the list for the month of August, it is devoid of purpose and out of time .  21 . Irrespective of the question whether an intervener may put forward arguments against the admissibility of an action that were not raised by the party whose conclusions it is supporting, it suffices to state that the action was brought within the period prescribed in Article 173 ( 3 ) of the Treaty, that is to say within two months of notification of the contested decision to the applicant . The applicant retains an interest in bringing proceedings despite the fact that the period of validity of the decision has expired and that it has already been implemented . Annulment of the decision is of itself capable of having legal consequences, on the one hand by serving as a possible point of departure for any claim for damages and, on the other hand, by preventing the Commission from continuing in the future to adopt decisions similarly vitiated and affecting the applicant in the same way . ( 2 )  ( c ) 22 . On the other hand, however, the alternative claims of Apesco in which it asks for a declaration that the vessels of its members are entitled henceforth not to be the subject of discrimination and that the discrimination should be remedied by compensating those vessels in future periodical lists are not admissible .  23 . As the Commission has rightly emphasized, the Court has no power to make such orders in proceedings under Article 173 for review of the legality of a decision . ( 3 )  ( d ) 24 . The Commission states further that only the operators of vessels appearing on the contested list are directly and individually concerned by the contested decision under the second paragraph of Article 173 of the Treaty, so that Apesco' s action is admissible only in so far as it is brought in the name of those operators . In my opinion that contention is unfounded .  25 . Certainly, since the contested act is a list that is valid for a particular month, only submissions directed specifically against that list may properly be made . The question whether vessels not appearing on the list are victims of discrimination cannot be examined in relation to an isolated periodical list since it is inherent in the whole system of lists as instituted by the Act of Accession that not all the vessels appearing on the basic list can appear at any one time on the periodical lists and that some of them must necessarily be excluded . Therefore it is only by looking at a whole series of lists that it would be possible to examine whether those vessels not appearing on the list for July 1986 have been discriminated against in relation to other vessels .  26 . It seems to me, however, that an applicant must have the possibility of challenging the non-entry of a vessel on a list for a given month and of then trying to demonstrate with the help of a whole series of lists concerning the previous months on which the vessel also did not appear that the vessel has been discriminated against .  27 . At all events, I consider that it can be inferred from the stand taken by Apesco that in the present case that association has made itself the spokesman only for those of its members whose vessels appear on the list for the month of July 1986 . I therefore consider that the action is admissible .  ( e ) 28 . The Commission makes a further observation that Apesco is not entitled, under the procedure of Article 173, to raise the issue of whether national provisions comply with Community law . In the same vein, Ceepesca complains that Apesco is in reality challenging provisions of internal Spanish law and that it is therefore not the Court of Justice but Spanish courts which ought to decide the present dispute, possibly after referring a question to the Court for a preliminary ruling pursuant to Article 177 of the Treaty .  29 . It is clear that in the context of the present case it is out of the question for the Court to find that the Spanish ministerial order of 1981 was incompatible with Community law . Such a finding could only be made in the context of an action for failure to fulfil an obligation brought by the Commission against the Kingdom of Spain and such an action would necessitate a thorough discussion of all the relevant aspects of that order .  30 . It must, however, be recognized that Apesco is not formally asking the Court to hold that the Spanish ministerial order is incompatible with Community law, but is reproaching the Commission for having approved a draft periodical list that was not established on the basis of Community law alone and infringes the principle of non-discrimination . That, therefore, constitutes the basic problem raised by this case, namely the scope of the control which the Commission may carry out in connection with the draft periodical lists . It is that problem which I shall now examine .  B - The scope of the control to be carried out by the Commission  31 . Pursuant to Article 163 ( 1 ) of the Act of Accession, it is for the Spanish authorities to submit to the Commission draft periodical lists .  32 . Under Article 163 ( 2 ) "After having been checked, these lists shall be approved by the Commission which shall forward them to the Spanish authorities and to the supervisory authorities of the other Member States concerned ."  33 . What points are to be checked by the Commission?  34 . On the one hand there are the basic conditions which follow directly from Article 158 of the Act of Accession and concern essentially :  ( i ) the identity of the vessels, which must necessarily be included among the 300 vessels enumerated in the basic list comprising Annex IX to the Act of Accession;  ( ii ) the vessels' horsepower and the application to each vessel of a conversion rate laid down for each category of horsepower;  ( iii ) the total number of vessels, which must not exceed 150 "standard vessels";  ( iv ) the distribution of the vessels within the limits indicated over the different authorized zones, given that five may be allocated only for fishing for species other than demersal .  35 . On the other hand, the first subparagraph of Article 3 ( 2 ) of Regulation No 3531/85, cited above, requires that the periodical lists specify on a day-to-day basis the vessels authorized to fish and that each vessel appearing on such a list must be allocated six consecutive days' fishing .  36 . Pursuant to Article 3 ( 4 ) of Regulation No 3531/85, the draft periodical lists are to provide precise information on each vessel on those various points, the registration number of the vessel, the call sign, the identity of the owner(s ) or charterer(s ) and the intended method of fishing . The purpose of all that information is precisely to enable the Commission to check whether the abovementioned basic conditions have in fact been complied with by the Spanish authorities .  37 . Finally, Council Regulation No 3781/85 of 31 December 1985 ( 4 ) provides that in the case of a recorded infringement of the rules on access to waters and resources established by the Act of Accession, the Spanish authorities may no longer enter the vessel on the draft periodical lists submitted to the Commission . Before approving a draft list the Commission must therefore check whether the Spanish authorities have in fact applied that penalty .  38 . In the present case there has been no allegation that the Commission infringed any of those rules .  39 . Beyond that body of more or less technical rules neither the Act of Accession nor the implementing regulations provide for any other criteria to be taken into account when the lists are drawn up . In particular, I am unable to find any provision laying down that each individual vessel should be authorized to fish during any given month for the same number of days as any other vessel appearing on the list . A fortiori there is nothing in the provisions to suggest that vessels affiliated to a given organization should, on average, be authorized to fish for the same number of days as vessels affiliated to another organization of Spanish fishermen .  40 . In the selection of the vessels which are to appear each month on the list and the allocation to them of a specified period of fishing, the provisions thus leave a fairly wide margin of discretion to the Spanish authorities . Those authorities must therefore be able to equip themselves with selection criteria which are indispensable for the performance of that task .  41 . Just as the fact that rules establishing a common organization of the market in a given sector are silent on the matter provides no grounds for the conclusion that Member States may no longer take measures in that sector, ( 5 ) in a situation where the Member States are expressly entrusted with taking action they must be regarded as authorized to do so by applying rules which they have laid down themselves .  42 . That is especially true in a case where those rules are intended to apply solely to the nationals of the Member State in question .  43 . In the fisheries sector in particular provisions are to be found under which the Member States are authorized or indeed instructed to supplement Community legislation with rules applicable to their own nationals .  44 . I would refer, for instance, to Article 20 of Regulation ( EEC ) No 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources ( Official Journal 1983 L 24, p . 14 ) which authorizes Member States to adopt national technical measures going beyond the minimum requirements laid down by Community rules .  45 . Similarly, under Article 5 ( 2 ) of Council Regulation No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources ( Official Journal 1983 L 24, p . 1 ) Member States are expressly entrusted with determining the detailed rules for the utilization of the quotas allocated to them .  46 . There is thus nothing to justify a conclusion that under the Act of Accession the Member States wished, in derogation from that principle, to regulate the reciprocal rights of Spanish fishermen or their access to the resources allocated to Spain .  47 . The purpose of the rules contained in Articles 156 to 163 is simply to contribute to the protection of fish stocks developing in the waters falling under the sovereignty or within the jurisdiction of the 10 Member States of longest standing in the Community . Article 156 of the Act refers in fact expressly and exclusively to the integration of vessels flying the flag of Spain into the Community system for the conservation and management of fishery resources established by Regulation No 170/83 to which I referred above .  48 . Finally, as emphasized in my Opinion of 22 September 1987 in Case 223/86 Pesca Valentia v The Minister for Fisheries and Forestry Ireland (( 1988 )) ECR 83, at paragraph 25, it follows from a series of provisions, in particular Council Regulation No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry ( Official Journal 1976 L 20, p . 19 ) that "the Member States have retained the power to adopt, in conformity with the criteria laid down by the Community, all measures necessary for the rational restructuring of their fishing fleets ." There can be no doubt that the purpose of the Spanish ministerial order of 1981 was to rationalize the fishing capacity of that Member State .  49 . The principle of the "Community' s exclusive competence in the fisheries sector" on which the applicant relies does not, therefore, remove all decision-making powers from the Member States in that area . The scope for independent action left to the Member States is, however, clearly circumscribed . The two provisions just cited require in express terms that the national provisions in question should be "compatible with Community law and ... in conformity with the common fisheries policy" and "in accordance with the applicable Community provisions ".  50 . In my opinion that must also apply in the present case inasmuch as when Member States are empowered to intervene in an area falling within the competence of the Community they cannot be released from their duty to observe the principles and general rules of the Community which are applicable . ( 6 )  51 . In that respect I must, however, make clear that Article 2 of Council Regulation No 101/76 cited above, which provides that "Member States shall ensure in particular equal conditions of access to and use of the fishing grounds situated in the waters referred to in the preceding subparagraph ( that is to say, the waters coming under their sovereignty ) for all fishing vessels flying the flag of a Member State and registered in Community territory", is not applicable in the case with which we are concerned . As the Commission has rightly pointed out, that article obliges each Member State to treat fishermen from other Member States as being on an equal footing with their own nationals in the maritime waters coming under its sovereignty or within its jurisdiction, not to ensure equal treatment between its own nationals in the waters of other Member States . Moreover I gained the impression that Apesco' s representative more or less abandoned that argument in the last stages of the procedure .  52 . However, among the principles and general rules of the Community there appears, in the sphere of the common agricultural policy, the second subparagraph of Article 40 ( 3 ) of the Treaty prohibiting "any discrimination between producers or consumers within the Community ".  53 . Since that provision is merely a specific expression of the general principle of equality which is one of the fundamental principles of Community law, ( 7 ) it not just applicable in the context of a common organization of the markets but also in respect of the entire series of measures falling under the common agricultural policy .  54 . Moreover, it follows expressly from the judgment of the Court of 25 November 1986 in Joined Cases 201 and 202/85 Klensch and Others v Secrétaire d' état à l' Agriculture et à la Viticulture (( 1986 )) ECR 3447, that the provision is also binding on the Member States when they take action for the implementation of the common agricultural policy ( paragraph 8 ).  55 . Hence the Court inferred that when, in such a case, Community rules leave Member States to choose between various methods of application they  "may not choose an option whose implementation in its territory would be liable to create, directly or indirectly, discrimination between the producers concerned, within the meaning of Article 40 ( 3 ) of the Treaty, having regard to the specific conditions on its market and, in particular, to the structure of the agricultural activities carried out in its territory" ( paragraph 11 ).  56 . In a previous judgment, given on 13 June 1978 in Case 139/87 Denkavit v Finanzamt Warendorf (( 1978 )) ECR 1317, the Court had already stated that  "(...) Article 40 ( 3 ) of the Treaty prohibits any discrimination between producers within the Community, and even within a single country of the Community (...)" ( paragraph 15 )  before examining whether a differentiation made, for the purposes of German tax law, between two categories of breeders, in a piece of German legislation, was discriminatory under that provision .  57 . There is therefore no doubt at all but that when drawing up the draft periodical lists as they are entrusted to do under the Act of Accession the Spanish authorities, in addition to complying with the conditions expressly laid down, must comply with the rule of non-discrimination resulting from Article 40 ( 3 ) of the Treaty and as interpreted by the Court .  58 . The question still remains whether, before adopting the periodical list for any given month, the Commission must examine its content directly in the light of the general principle of equality .  59 . At first sight one might be inclined to reply to that question in the affirmative . In effect it might be thought that in the case in point there is a situation in which a Member State is called upon to cooperate with a Community institution with a view to that institution' s adoption of a measure implementing rules established by the Act of Accession . It should be recalled that it is the Commission' s decision, adopted on the basis of a draft submitted by the national authorities, which brings into being the right of the vessels concerned to fish during the period covered .  60 . Since the Member States must, when implementing the common agricultural policy nationally, comply with the principles and general rules governing that policy, the Commission ought to be obliged when adopting, so to speak in collaboration with a Member State, a Community measure under the policy, to ascertain whether that measure is compatible with those same principles and general rules .  61 . Nevertheless I consider that the system of periodical lists as conceived in the Act of Accession itself is such that examination of the draft lists directly in the light of the general principle of equality is impossible .  62 . On the one hand, compliance with the principle of equality could not be assessed exclusively by reference to a single list for a given month, in view of the fact that all 300 vessels on the basic list could not appear on it . The Commission would also have to take into account the frequency with which the different vessels appeared on the previous lists ( and the possibility of their appearing on future lists ).  63 . On the other hand the principle of equality precludes identical situations being treated differently or situations which are different being treated in the same way . ( 8 )  64 . Application of the principle therefore presupposes that the Commission should have an array of information at its disposal allowing it properly to examine the situation of the different parties .  65 . However, as far as the vessels in question are concerned, the Commission has available only the information which the Spanish authorities must indicate on their draft lists in accordance with the requirements of the relevant provisions in the Act of Accession and its implementing regulations as mentioned above .  66 . The Commission has no opportunity of knowing of all the other factors which might influence the Spanish authorities in their selection of the vessels entered on a periodical list and all the particular reasons which might lead to some being excluded for a specific period . It may happen, for instance, that some vessels are undergoing repairs or are busy fishing in fishing zones other than those of the Member States of the Community of Ten .  67 . In that connection the Commission is right to emphasize that  "For the Commission to be in a position to select the vessels entered on the periodical list there would have to be a system for enabling fishermen to make themselves known directly and in detail to the Commission' s departments, and no such system has been established" ( page 19 of the defence ).  68 . It is also necessary to bear in mind the way in which the draft lists are actually drawn up .  69 . Under Article 158 ( 2 ) of the Act of Accession "Only 150 standard vessels, of which five may be allocated only for fishing for species other than demersal, taken from the basic list, shall be authorized to fish at the same time provided that they appear on a periodical list adopted by the Commission, up to the following limits :  ( a ) 23 in ICES divisions V b and VI,  ( b ) 70 in ICES division VII,  ( c ) 57 in ICES division VIII a, b, d ."  70 . It must not, however, be thought to suffice if the Spanish authorities divide into two lists of 150 vessels the 300 vessels appearing on the basic list and submit one of those two lists alternately to the Commission . The rules are in reality much more complex . Thus the periodical list for the month of July 1986 which is the subject of these proceedings comprises the names of 294 vessels, if I have counted accurately . That is explained by the fact that the 150 vessels referred to in Article 158 ( 2 ) are "standard vessels", that is to say vessels having a brake horsepower equal to 700 ( bhp ), the conversion rate for which is 1 . A conversion rate under 1 is applied to vessels having an engine power of less than 700 hp and a conversion rate over 1 is applied to vessels having an engine power of more than 800 hp . On the other hand a single vessel may be authorized to fish, during the same month, for a few days in Zone VI and another few days in Zone VIII, for example, so that its name appears twice in the periodical list .  71 . The draft list for the month of July 1986 provided that certain vessels would be authorized to fish for 6 days, others for 12, 19, 21 or 31 days . That fact could not give rise to any objection because Article 3 ( 2 ) of Regulation No 3531/85 cited above provides merely that each vessel must be allotted at least six consecutive days' fishing .  72 . The absence of any rule laying down that each vessel ought to be able to fish for the same number of days as any other vessel appearing on the list can probably be explained by the fact that engine sizes and power are very different and some vessels cannot remain at sea as long as others . It may also happen that the types of fish for which the different vessels fish are to be found closer to or further away from their home ports .  73 . The draft list did not refer either to the association of fishermen to which the owners of the vessels were affiliated because that is not laid down in the applicable texts . Finally, it was not possible to recognize the vessels affiliated to Apesco by the number of days that they were authorized to fish . It can be seen in fact from the tables contained in Annex 3 to the application that in July 1986 certain vessels belonging to that association were authorized to fish for a greater number of days than certain vessels affiliated to Ceepesca, even though, on average, Ceepesca vessels were treated more favourably . ( Minimum number of fishing days for a Ceepesca vessel : 10; maximum for an Apesco vessel : 31 days ).  74 . It is therefore impossible to see how the Commission, confronted with a list of 294 names of vessels proposed for authorization to fish for periods of between 6 and 31 days, could by itself have discovered in that list any breach of the principle of equality .  75 . Hence the conclusion may be drawn that the system as instituted by the Act of Accession does not permit the Commission to examine the draft lists in relation to the principle of equality .  76 . It follows from the foregoing that in approving the draft list established by the Spanish authorities for the month of July 1986 the Commission infringed neither the rules laid down for that purpose in the Act of Accession and its implementing regulations nor the general principle of equality or non-discrimination . There are therefore no grounds for annulling the decision .  77 . That leaves untouched the question whether that periodical list ( and the other periodical lists ) nevertheless constitutes discrimination between Spanish fishermen owing to the application of the 1981 ministerial order .  78 . As guardian of the Treaties the Commission is bound to examine that order, in particular in the light of the principle of equality, and if it should come to the conclusion that some of its contents are incompatible with Community law it must initiate the procedure provided for in Article 169 of the Treaty with regard to the Kingdom of Spain and if necessary bring proceedings before the Court .  79 . Supposing the Commission were actually to draw that conclusion, should it thenceforth refuse to approve the draft periodical lists?  80 . It seems to me that that would not be possible because, in contrast to the ECSC Treaty under which, pursuant to Article 88, it is for the High Authority to record, in reasoned decisions, that Member States have failed to fulfil their obligations, under the EEC Treaty such a finding falls within the jurisdiction of the Court of Justice ( except in the special case of Article 93 ( 2 ) ).  81 . Until such time as the Court has delivered a judgment, the incompatibility of the order or certain of its provisions with Community law is not established .  82 . If the Commission were allowed to refuse to approve a draft periodical list submitted by the Spanish authorities because, in the Commission' s opinion, it had been established on the basis of national rules incompatible with Community law, that would amount to recognizing that that institution had power to make a finding by indirect means which it could not make directly . It should be recalled that in the Community legal order the power of setting aside a rule of national law which conflicts with Community law is for the national courts alone .  83 . Moreover, a simple refusal by the Commission to approve the lists would either prevent the vessels in question from going to sea, which is unthinkable, or would lead to their fishing unlawfully . It therefore seems to me that if that were the case the most the Commission could do would be to declare that it approved the draft projects only "subject to reservations", thereby giving grounds to the owners of the disadvantaged vessels for claims to compensation were the Court, in an action for failure to fulfil an obligation, to hold that the order in question did indeed infringe Community law .  84 . In parallel there still remains the possibility that a Spanish court, if necessary after referring questions to the Court on the basis of Article 177, might declare certain provisions of the ministerial order of 1981 contrary to Community law . In that case the Spanish authorities would immediately have to cease producing draft lists that applied those provisions .  85 . In any event the problem whether the 1981 ministerial order is compatible with Community law is not at issue in the present proceedings and has been touched upon during the procedure only indirectly and by only some of the parties . In the circumstances there is no need for me to define my position in that regard .  Conclusion  86 . In conclusion I have no alternative but to propose that the Court dismiss the application and order the applicant to pay the costs, including those incurred by the interveners .  (*) Translated from the French .  ( 1 )  Commission Regulation ( EEC ) No 3531/85 of 12 December 1985 laying down certain technical and control measures relating to the fishing activities of vessels flying the flag of Spain in the waters of the other Member States, except Portugal ( Official Journal 1985 L 336, p . 20 ).  ( 2 )  In this connection see the judgment of 24 June 1986 in Case 53/85 AKZO v Commission (( 1986 )) ECR 1965, paragraph 21; see also the judgment of 6 March 1979 in Case 92/78 Simmenthal v Commission (( 1979 )) ECR 777, paragraph 32 .  ( 3 )  For the most recent case see the judgment of 17 November 1987 in Joined Cases 142 and 156/84 British American Tobacco and Reynolds Industries v Commission (( 1987 )) ECR 4487, paragraph 13 .  ( 4 )  Council Regulation ( EEC ) No 3781/85 of 31 December 1985 laying down the measures to be taken in respect of operators who do not comply with certain provisions relating to fishing contained in the Act of Accession of Spain and Portugal ( Official Journal 1985 L 363, p . 26 ).  ( 5 )  See, for example, the judgment of 25 November 1986 in Case 148/85 Direction Générale des Impôts v Forest (( 1986 )) ECR 3449, paragraph 14 .  ( 6 )  See, with regard to such enabling provisions in the context of the operation of a common organization of the market, the judgment of 16 January 1979 in Case 151/78 Sukkerfabriken Nykìbing Limiteret v Ministry of Agriculture (( 1979 )) ECR 1, paragraph 22 .  ( 7 )  See, for instance, the judgments of 19 October 1977 in Joined Cases 117/76 and 16/77 Ruckdeschel v Hauptzollamt Hamburg-St Annen (( 1977 )) ECR 1753, paragraph 7, and Joined Cases 124/76 and 20/77 Moulins et Huileries Pont-à-Mousson v Office national Interprofessionnel des Céréales (( 1977 )) ECR 1795, paragraph 16 .  ( 8 )  See, for example the judgment of 23 February 1983 in Case 8/82 Wagner v BALM (( 1983 )) ECR 371, paragraph 18 .