CELEX: 62004CC0034
Language: en
Date: 2006-07-13
Title: Joined opinion of Advocate General Kokott delivered on 13 July 2006. # Commission of the European Communities v Kingdom of the Netherlands. # Failure of a Member State to fulfil obligations - Fishing licences - Regulation (EC) No 3690/93 - Vessels Wiron III and Wiron IV - Definitive transfer of those vessels to Argentina. # Case C-34/04. # Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. # Failure of a Member State to fulfil obligations - Fishing licences - Regulation (EC) No 3690/93 - Vessels Cleopatra and Ocean Quest - Definitive transfer of those vessels to Argentina. # Case C-64/04.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      of 13 July 2006 1(1)
      
      Case C-34/04
      Commission of the European Communities
      v
      Kingdom of the Netherlands
      and
      Case C-64/04
      Commission of the European Communities
      v
      United Kingdom of Great Britain and Northern Ireland
      (Common fisheries policy – Restructuring of the fisheries sector –Fishing licences – Definitive transfer to Argentina)I –  Introduction
      1.     In 1996, two vessels each from the Netherlands fishing fleet and the United Kingdom fishing fleet were transferred to Argentina.
         The Community supported these measures with a total of ECU 7 464 585.60. In the opinion of the Commission, however, these
         aids have not fulfilled their purpose, as the defendant Member States have licensed new vessels for fishing in the place of
         the vessels transferred. It has therefore brought these two sets of proceedings for breach of treaty obligations, which are
         legally essentially the same. As I will demonstrate below, however, the Commission has relied on the wrong legal basis.
      
      II –  Legal background
      2.     In order to be permitted to fish, fishing vessels require a fishing licence, which is attached to the vessel. Community law
         first made provision for such a licence in Article 5 of Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing
         a Community system for fisheries and aquaculture (2) (‘the Fisheries Regulation’):
      
      ‘(1) The Council, acting in accordance with the procedure laid down in Article 43 of Treaty, shall, before 31 December 1993,
         establish a Community system which shall apply from a date no later than 1 January 1995 laying down rules for the minimum
         information to be contained in fishing licences, to be issued and managed by Member States.
      
      From the date of application of the Community system, Member States shall be required to operate national systems of fishing
         licences. Except where otherwise provided, all Community fishing vessels shall be required to have a fishing licence, which
         is attached to the vessel.
      
      The above provisions shall apply without prejudice to any specific system which may be in force at the Community level or
         those required under present and future international agreements.
      
      (2) The licensing system shall apply to all Community fishing vessels in the Community fishing waters or operating in the
         waters of third countries or on the high seas. The Community minimum information requirements shall also apply to third country
         vessels fishing in Community fishing waters where provided for under international agreements’.
      
      3.     Fishing licences attached to vessels are regulated in more detail by Council Regulation (EC) No 3690/93 of 20 December 1993
         establishing a Community system laying down rules for the minimum information to be contained in fishing licences (3) (‘the Minimum Information Regulation’). The relevant provisions read as follows:
      
      ‘Article 1 
      (1) A Community system of fishing licences shall be established laying down rules on the minimum information to be contained
         in the fishing licences referred to in Article 5 of Regulation (EEC) No 3760/92. 
      
      (2) All Community fishing vessels shall be required to have a fishing licence for the vessel. 
      (3) The licence must be kept on board the vessel. 
      (4) Fishing vessels shall be forbidden to catch, retain on board, transfer or land fish where a fishing licence has not been
         granted or where the fishing licence has been withdrawn or suspended. 
      
      …
      Article 3
      The flag Member State shall issue and administer fishing licences for the fishing vessels flying its flag, having due regard
         to the provisions of Article 11 of Regulation (EEC) No 3760/92.
      
      …
      Article 5 
      The flag Member State shall suspend temporarily or definitively the fishing licences of vessels which are subject to temporary
         immobilisation and shall withdraw the fishing licences of vessels which are subject to definitive withdrawal from fishing
         activities.’
      
      4.     Article 11 of the Fisheries Regulation, referred to in Article 3 of the Minimum Information Regulation, placed on the Council
         the duty of laying down the objectives of the restructuring of the Community fishing fleet:
      
      ‘Having regard to Title I, on a multiannual basis and for the first time not later than 1 January 1994, the Council, acting
         in accordance with the procedure laid down in Article 43 of the Treaty, shall set the objectives and detailed rules for restructuring
         the Community fisheries sector with a view to achieving a balance on a sustainable basis between resources and their exploitation.
         Such restructuring shall also take account on a case-by-case basis of possible economic and social consequences and of the
         specificities of the fisheries regions.’
      
      5.     In accordance with that provision, the Council adopted its Decision of 20 December 1993 relating to the objectives and detailed
         rules for restructuring the Community fisheries sector over the period 1 January 1994 to 31 December 1996 (4) with a view to achieving a lasting balance between the resources and their exploitation (‘the Restructuring Decision’). It
         reads: 
      
      ‘Article 1 
      (1) By 31 December 1996 at the latest, and taking into account the objectives fixed in the transitional guidance programmes
         for 31 December 1991, the fishing effort of the fleet of each Community Member State must have decreased by: 
      
      –       20% for trawlers bottom trawling for demersal stocks, 
      –       15% for dredgers and beam trawlers targeting benthic stocks, 
      –       0% i.e. no increase for the other segments of fleet. 
      (2) At least 55% of the required effort reductions must be purely by capacity reductions. 
      Article 2 
      The implementation of the objectives and procedures referred to in Article 1 shall be ensured by the Commission under the
         multiannual guideline plans for the Member States’ fishing fleets as approved by the Commission Decisions of 21 December 1992
         and possibly amended within the framework of the same procedure.’
      
      6.     The specific targets during the relevant period are set for the Netherlands in the Commission Decision of 21 December 1992
         on a multiannual guidance programme for the fishing fleet of the Netherlands for the period 1993 to 1996 pursuant to Council
         Regulation (EEC) No 4028/86 (5) and for the United Kingdom in the Commission Decision of 21 December 1992 on a multiannual guidance programme for the fishing
         fleet of the United Kingdom for the period 1993 to 1996 pursuant to Council Regulation (EEC) No 4028/86 (6).
      
      7.     Provisions on the means of attaining those targets are contained in Council Regulation (EC) No 3699/93 of 21 December 1993
         laying down the criteria and arrangements regarding Community structural assistance in the fisheries and aquaculture sector
         and the processing and marketing of its products (7) (‘the Structural Measures Regulation’). The relevant articles in these cases are Articles 7 to 9.
      
      ‘Article 7 Common Provisions
      (1) At the end of a multiannual guidance programme, where, with regard to a given segment of a Member State’s fleet, the reductions
         in capacity financed by official aid lead to overachievement of the objectives for that segment, the new situation brought
         about solely as a result of that aid may not be invoked to bring into service new capacity. 
      
      …
      (2) …
      Article 8 Adjustment of fishing effort 
      (1) Member States shall take measures to adjust fishing effort to achieve at least the objectives of the multiannual guidance
         programmes referred to in Article 5.
      
      Where necessary, Member States shall take measures to stop vessels’ fishing activities permanently or restrict them.
      (2) Measures to stop vessels’ fishing activities permanently may include
      –       scrapping; 
      –       permanent transfer to a third country, provided such transfer is not likely to infringe international law or affect the conservation
         and management of marine resources; 
      
      –       permanent re-assignment of the vessel in question to uses other than fishing in Community waters. 
      …
      Member States shall ensure that vessels concerned by such measures are deleted from the registration lists for fishing vessels
         and from the Community fishing vessel register. They shall also ensure that deleted vessels are permanently excluded from
         fishing in Community waters. 
      
      (3) …
      8.     The transfer of the vessels in these cases, however, was not made directly on the basis of the Structural Measures Regulation
         but on the basis of the Agreement on relations in the sea fisheries sector between the European Economic Community and the
         Argentine Republic of 24 May 1994.(8)
      
      9.     The ninth recital in the preamble states:
      ‘CONVINCED that this new type of cooperation in the fisheries sector will provide regular access to new fishing opportunities,
         further the aims of renewing and converting the Argentine fleet and restructuring the Community fleet and promote the rational
         exploitation of resources in the long term.’
      
      10.   The relevant provisions of Article 5 of the Agreement state:
      ‘(1) The Parties shall create suitable conditions for the establishment in Argentina of undertakings using capital originating
         in one or more Member States of the Community and the creation of joint enterprises and joint ventures in the fisheries sector
         between Argentinian and Community shipowners with the aim of jointly exploiting and, where appropriate, jointly processing
         Argentinian fishery resources under the conditions laid down in Protocol I and Annexes I and II.
      
      (2) … 
      (3) As part of its policy for the restructuring of its fleet, the Community shall facilitate the inclusion of Community vessels
         in undertakings established or to be established in Argentina. ...’
      
      11.   Support by the Community is provided for in Article 7(1) of the Agreement:
      ‘(1) In order to encourage the establishment of the undertakings provided for in Article 5, the projects selected by the Parties
         pursuant to Article 6 shall be eligible for financial assistance in accordance with Protocol I.’
      
      III –  Facts and pleadings
      Case C-34/04 – Commission v Netherlands
      12.   The proceedings against the Netherlands concern the transfer of two vessels, the Wiron III and the Wiron IV, to a joint enterprise
         under the Agreement with Argentina. The vessels were transferred in July 1996. The Commission granted assistance in a decision
         of 16 December 1996 addressed to the Netherlands, the owners of the vessels and the joint enterprise. In relation to each
         vessel, it amounted to ECU 1 852 236 for the former owners and ECU 277 835.40 for the joint enterprise.
      
      13.   The Netherlands then issued new licences for other vessels, which took the place of the two transferred vessels in the register
         of fishing vessels.
      
      14.   The Commission claims that the Court should:
      (1)      declare that, by failing to withdraw the fishing licences granted to the fishing vessels Wiron III and Wiron IV following
         the definitive transfer of those vessels to Argentina, the Kingdom of the Netherlands has failed to fulfil its obligations
         under Article 5 of Regulation (EC) No 3690/93 of 20 December 1993 establishing a Community system laying down rules for the
         minimum information to be contained in fishing licences; 
      
      (2)      order the Kingdom of the Netherlands to pay the costs. 
      15.   The Kingdom of the Netherlands contends that the Court should:
      (1)      dismiss the Commission’s application, and
      (2)      order the Commission to pay the costs.
      Case C-64/04 – Commission v United Kingdom
      16.   The background to the proceedings against the United Kingdom is as follows: In the second half of 1996, the owners of the
         vessels Cleopatra and Ocean Quest applied to the Ministry of Agriculture, Fisheries and Food of the United Kingdom for Community
         assistance under the Agreement with Argentina for the transfer of those vessels to a joint enterprise. The Ministry passed
         those applications on to the Commission. In doing so, it stated that the vessels were selected in order to reduce the fishing
         effort in the North Sea.
      
      17.   The vessel owners then transferred the fishing licences of the vessels for consideration to third parties. Under United Kingdom
         law, the latter acquired the right to the issuing of a corresponding fishing licence for a fishing vessel.
      
      18.   When the competent United Kingdom authorities learned of the transfer of the licences, they enquired of the Commission whether
         that was permissible. The Commission authorities replied that it was not.
      
      19.   The Commission nevertheless issued a decision on 16 December 1996, addressed to the United Kingdom, the original vessel owners
         and the relevant joint enterprises, granting Community assistance. In the case of the Cleopatra, ECU 1 469 592 went to the
         vessel owners and ECU 220 438.80 to the joint enterprise. In the case of the Ocean Quest, the assistance amounted to ECU 1 316 880
         and ECU 197 532.
      
      20.   Although the competent United Kingdom authorities again referred to the transfer of the licences, these funds were actually
         disbursed.
      
      21.   The Commission claims in Case C-64/04 that the Court should:
      (1)      declare that the United Kingdom, by having failed to withdraw the fishing licences of the fishing vessels known as CLEOPATRA
         and OCEAN QUEST after their permanent transfer to Argentina, has breached Article 5 of Regulation (EC) 3690/93 of 20 December
         1993 establishing a Community system laying down rules for the minimum information to be contained in fishing licences;
      
      (2)      order the United Kingdom to pay the costs.
      22.   The United Kingdom contends that the Court should dismiss the Commission’s application and order the Commission to pay the
         costs.
      
      IV –  Legal assessment
      23.   In each set of proceedings, the Commission complains that, after the permanent transfer of the vessels, the Member State in
         question failed to withdraw their fishing licences.
      
      A –     Article 5 of the Minimum Information Regulation
      24.   The Commission bases its complaint on Article 5 of the Minimum Information Regulation. According to that provision, the flag
         Member State is to suspend temporarily or definitively the fishing licences of vessels which are subject to temporary immobilisation
         and to withdraw the fishing licences of vessels which are subject to definitive withdrawal from fishing activities. It therefore
         needs first to be determined whether the vessels have been immobilised within the meaning of that provision, and, if they
         have, whether the relevant Member State has withdrawn their fishing licences.
      
      1.      Immobilisation
      25.   The vessels at issue in these proceedings, in the proceedings against the Netherlands the Wiron III and the Wiron IV, and
         in those against the United Kingdom the Ocean Quest and the Cleopatra, were removed, with Community assistance, from the fishing
         fleets of the Netherlands and the United Kingdom respectively and transferred to the Argentine fishing fleet.
      
      26.   As the vessels continued to be used for fishing, immobilisation appears at first sight to be excluded. However, Article 8
         of the Structural Measures Regulation makes clear that the permanent transfer of a fishing vessel to a third country is also
         a case of immobilisation. That is because fishing vessels that have been definitively removed no longer form part of the Community
         fleet.
      
      27.   Although the Netherlands Government disputes the applicability of Article 8 of the Structural Measures Regulation to the transfer
         of vessels under the Agreement with Argentina, it would be wrong, for the purposes of licensing, not to treat such transfer
         as a definitive immobilisation. Without withdrawal of the licences, it would be possible for these vessels, like vessels of
         the Community, to fish in Community waters or on Community quotas. 
      
      28.   Moreover, the transfer of vessels to Argentina in accordance with Article 5(3) of the Agreement, and the ninth recital in
         its preamble, is intended inter alia to promote restructuring of the Community fleet. As a result, general rules on restructuring measures are applicable either directly or by analogy to the transfer of vessels to Argentina. (9) To what extent particular rules of the Agreement exclude the rules of the Restructuring Regulation (10) need not be determined here, since the Agreement does not in any case determine whether the transfer of vessels to Argentina
         is to be treated as definitive immobilisation or not.
      
      29.   It follows that the fishing licences of the transferred vessels had to be withdrawn in accordance with Article 5 of the Minimum
         Information Regulation.
      
      2.      Withdrawal of the licences
      30.   The parties – including the Commission – are agreed that the transferred vessels no longer have fishing licences. 
      31.   According to information supplied by the Netherlands Government, the licences of the Netherlands vessels were automatically
         withdrawn by operation of statute. All that had happened was that the vacated places in the Netherlands vessels register had
         been allocated to new vessels and new fishing licences were issued to them. 
      
      32.   The United Kingdom states that the owners of the licences sold them to third parties, who used them for other vessels. When
         the vessels finally left the British fleet, they therefore no longer had any licences which could be withdrawn. 
      
      33.   This statement appears at first sight to be irreconcilable with the principle that licences attach to vessels. According to
         Article 5(1), second subparagraph, of the Fisheries Regulation, all fishing vessels of the Community must have a licence,
         which is attached to the vessel. 
      
      34.   In reality, however, according to information from the United Kingdom and the Commission, it is not the licences themselves
         that are traded but ‘licence entitlements’. The actual licence can be issued only if the applicant has such an entitlement.
         That appears to have happened in this case on the basis of the sold entitlements.
      
      35.   The circumstances required by Article 5 of the Minimum Information Regulation therefore appear to have been met: the transferred
         vessels no longer have fishing licences.
      
      3.      The replacement of the licences of the transferred vessels
      36.   The actual complaint of the Commission is, however, that the Netherlands and the United Kingdom issued new licences for other fishing vessels, which corresponded to the licences of the vessels which were transferred to fleet of a third State with
         Community assistance. The Commission therefore objects that the transferred capacities were replaced, in that new vessels
         took the place of the transferred vessels.
      
      37.   Under present law, this is unambiguously governed by Article 11(3) of Regulation No 2371/2002 (11): Subsidies are not granted until after withdrawal of the licence. Nor can that licence be replaced. However, there was no
         such express provision at the relevant time in this case. 
      
      38.   The Commission argues that, even without such an express provision, Article 5 of the Minimum Information Regulation required
         withdrawal of the fishing licence without replacement. (12) The United Kingdom accepts that interpretation. The Netherlands rejects it. 
      
      39.   According to its wording, Article 5 of the Minimum Information Regulation does not contain provision for the issuing of replacement
         licences for withdrawn fishing licences. On the contrary, it is exclusively concerned with the withdrawal of licences.
      
      40.   The Commission is therefore trying to infer a prohibition on the issuing of replacement licences from the objectives of the
         restructuring measures under Article 8 of the Restructuring Regulation and particularly from the objectives of supporting
         a transfer of vessels to Argentina. 
      
      41.   Since the transfer of vessels to Argentina under the Agreement with that State is designed to promote restructuring of the
         Community fleet, it is aimed at reducing the fishing capacities of the Community. A reduction is obstructed if new vessels
         are licensed in the place of those transferred.
      
      42.   The Commission is therefore right to the extent that the issuing of replacement licences in the event of the subsidised transfer
         of fishing vessels prejudices the objectives of the subsidy. 
      
      43.   The fact that the objectives of the subsidy are prejudiced does not, however, in itself permit the conclusion that the issuing
         of replacement licences infringes Article 5 of the Minimum Information Regulation, either on its own or in conjunction with Article 8 of the Structural Measures
         Regulation. 
      
      44.   Neither of those two provisions contains the slightest suggestion of a provision which would secure those objectives by prohibiting
         the replacement of withdrawn fishing licences. Article 8 of the Structural Measures Regulation does not even mention fishing
         licences. Article 5 of the Minimum Information Regulation contains only the obligation to withdraw the fishing licence of
         a particular vessel. That obligation is fulfilled with the withdrawal of that licence. The circumstances in which new licences
         may be issued for other vessels cannot be inferred from the obligation to withdraw. That is, rather, the subject-matter of
         other provisions, which also take account of the objectives of an immobilisation subsidy. (13)
      
      45.   As the Netherlands Government has stated, in relation to the provisions on the issuing of licences, the Commission could,
         in proceeding against the two Member States, have based its argument on Article 3 of the Minimum Information Regulation. The
         first subparagraph of Article 7(1) of the Structural Measures Regulation could have been considered. 
      
      46.   Those provisions are, however, not the subject-matter of these applications, and cannot therefore enable them to succeed. (14) The Netherlands Government has therefore correctly remarked that the Commission has based its application on the wrong legal
         basis.
      
      47.   Both applications should therefore be dismissed.
      B –    Examination in the alternative of other provisions
      48.   Only in the alternative, in case the Court takes a broader view of the subject-matter of the application, and in order to
         emphasise that the interpretation suggested by the Commission of Article 5 of the Minimum Information Regulation in conjunction
         with Article 8 of the Structural Measures Regulation is not necessary, I would like to demonstrate below that, in these proceedings,
         the Commission has also not proven any infringement of Article 3 of the Minimum Information Regulation or the first subparagraph
         of Article 7(1) of the Structural Measures Regulation.
      
      1.       Article 3 of the Minimum Information Regulation 
      49.   According to Article 3 of the Minimum Information Regulation, the flag Member State is to issue and administer fishing licences
         for the fishing vessels flying its flag, having due regard to the provisions of Article 11 of the Fisheries Regulation. That
         national responsibility is also emphasised by the first two subparagraphs of Article 5(1) of the Fisheries Regulation.
      
      50.   Contrary to a submission made by the Netherlands but since abandoned, Member States are not free in the issuing of licences
         but must have regard to Article 11 of the Fisheries Regulation. That provision contains an obligation on the Council to set
         the objectives and detailed rules for restructuring the Community fisheries sector with a view to achieving a balance on a
         sustainable basis between resources and their exploitation. 
      
      51.   The Council set those objectives with the Restructuring Decision of 1993. In accordance with that decision, fleet capacities
         were to be reduced in certain areas and not increased in others. In order to achieve those objectives, Member States were
         to carry out so-called multiannual guideline plans under the supervision of the Commission. The reference in Article 3 of
         the Minimum Information Regulation to Article 11 of the Fisheries Regulation thus indirectly obliges the Member States to
         have regard to the restructuring objectives when issuing fishing licences.
      
      52.   In principle, therefore, as the Netherlands and United Kingdom Governments recognise, no new fishing capacities can be authorised.
         By contrast, both governments regard the replacement of capacities being withdrawn as possible in principle.
      
      53.   It does not need to be explained in detail here under what circumstances the replacement of capacities being withdrawn is
         permissible. In particular, the arguments of the two governments (15) do not need to be discussed in detail. 
      
      54.   An infringement of Article 3 of the Minimum Information Regulation, Article 11 of the Fisheries Regulation, the Restructuring
         Decision of 1993 and the relevant multiannual guidance plans would require at the least in each case that the objectives of
         this programme be missed owing to the replacement of transferred capacities. In that respect, however, the Commission has
         not presented any argument. It is not known either whether the two Member States missed the objectives or whether withdrawal
         of the licences without replacement would have contributed towards achieving the objectives which were missed. (16)
      
      55.   Therefore, there is no discernible infringement here of Article 3 of the Minimum Information Regulation. 
      2.      First subparagraph of Article 7(1) of the Structural Measures Regulation
      56.   The issuing of licences by way of replacement in these cases could also have infringed the first subparagraph of Article 7(1)
         of the Structural Measures Regulation. Independently of the reduction objectives of the multiannual guideline plans, this
         provision prohibits the replacement of capacity reductions. It does, however, require that the reduction have been financed
         solely by public subsidies.
      
      57.   The Commission is, however, not arguing that the transfer was financed solely by public subsidies. That is moreover doubtful
         in these cases, since the owners of the vessels obviously wanted to derive profits from fishing in Argentine waters. Moreover,
         at least in the case of the transfer of the United Kingdom vessels, the proceeds of sale of the licence entitlements were
         a further reason for the transfer.
      
      58.   Therefore, there is no discernible infringement here of the first subparagraph of Article 7(1) of the Structural Measures
         Regulation either.
      
      3.      Result of the examination in the alternative
      59.   Both applications would also have to be dismissed, even if the Court were to regard Article 3 of the Minimum Information Regulation
         or the first subparagraph of Article 7(1) of the Structural Measures Regulation as part of the subject-matter of the applications.
         An examination of those provisions shows rather that the Commission’s suggested interpretation of Article 5 of the Minimum
         Information Regulation in conjunction with Article 8 of the Structural Measures Regulation would constitute a circumvention
         of the requirements laid down in Article 3 of the Minimum Information Regulation and the first subparagraph of Article 7(1)
         of the Structural Measures Regulation.
      
      V –  Costs
      60.   Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party’s pleadings. Since the Commission has been unsuccessful in both sets of proceedings, it
         must be ordered to pay the costs as the Netherlands and United Kingdom Governments have pleaded.
      
      VI –  Conclusion
      61.   I therefore propose that the Court should rule as follows in Case C-34/04 and Case C-64/04:
      (1)      The application is dismissed.
      (2)      The Commission of the European Communities is ordered to pay the costs.
      1 –	Original language:  German.
      
      2 –	OJ 1992 L 389, p. 1, as amended by the concerning the conditions of accession of the Kingdom of Norway, the Republic of
         Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union
         is founded, ANNEX I – List under Article 29 of the Act of Accession – X. Fisheries (OJ 1994 C 241, p. 189). The regulation
         was replaced with effect from 1 January 2003 by Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation
         and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59).
      
      3 –	OJ 1993 L 341, p. 93. That regulation was repealed by Council Regulation (EC) No 700/2006 of 25 April 2006 repealing Regulation
         (EC) No 3690/93 establishing a Community system laying down rules for the minimum information to be contained in fishing licences
         (OJ 2006 L 122, p. 1) and replaced by Commission Regulation (EC) No 1281/2005 of 3 August 2005 on the management of fishing
         licences and the minimal information to be contained therein (OJ 2005 L 203, p. 3).
      
      4 –	OJ 1994 L 10, p. 20.
      
      5 –	OJ 1992 L 401, p. 15.
      
      6 –	OJ 1992 L 401, p. 33.
      
      7 –	OJ 1993 L 346, p. 1, as amended by Council Regulation (EC) No 1624/95 of 29 June 1995 (OJ 1995 L 155, p. 1). Consolidated
         by Council Regulation (EC) No 2468/98 of 3 November 1998 laying down the criteria and arrangements regarding Community structural
         assistance in the fisheries and aquaculture sector and the processing and marketing of its products (OJ 1998 L 312, p. 19)
         and replaced by Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding
         Community structural assistance in the fisheries sector (OJ 1999 L 337, p. 10).
      
      8 –	OJ 1993 L 318, p. 2. 
      
      9 –	See in this respect Case C‑254/03 P EduardoVieira v Commission [2005] ECR I-237, paragraphs 36 et seq. and 63 et seq.
      
      10 –	See the arguments of the appellant in Vieira (cited in footnote 9, at paragraph 58) and the Opinion of Advocate General Tizzano in that case of 16 September 2004, point
         71 et seq.
      
      11 –	Cited in footnote 2.
      
      12 –	According to the reasoning of the Commission Proposal for Regulation (EC) No 2371/2002 COM(2002) 185 final, p. 4, the provision
         of Article 11(3) of Regulation No 2371/2002 corresponds to previously existing law. In the legislative procedure, however,
         Spain, France, Greece and Italy long objected to that provision, see Council Documents 14231/1/02 REV 1, footnote 31, und
         15271/02, footnote 14.
      
      13 –	The United Kingdom suggests a further possibility of ensuring the effectiveness of the subsidy: The Commission could have
         demanded the return of the Community assistance, structuring it in such a way that repayment could be demanded where the objective
         was not met. That would have been a sensible measure to avoid waste of public resources.
      
      14 –	On the subject of extending the scope of the subject-matter of the application, see Case C-6/04 Commission v UnitedKingdom [2005] ECR I-9017, paragraph 57 et seq.
      
      15 –	The United Kingdom Government essentially argues that the obligation to withdraw the licence without replacement did not
         arise until after the vessels no longer had a licence. The Netherlands Government does not accept that the Structural Measures
         Regulation does not apply to the transfer of vessels under the Agreement with Argentina.
      
      16 –	That is conclusive from the Commission’s point of view, as it wrongly based its application on Article 5 of the Minimum
         Information Regulation in conjunction with Article 8 of the Structural Measures Regulation. No account can be taken in these
         proceedings of the fact that, independently, the Commission announced that both Member States missed the objectives of the
         guidance programme between 1993 and 1996, Annual Report to the Council and the European Parliament on the State of Implementation
         of the multiannual guideline plans for the fishing fleets, End 1996, COM(1997) 352, p. 36 for the Netherlands and p. 45 for
         the United Kingdom. As the Commission did not plead on that basis, the two Member States were not required to take a position
         in these proceedings. According to the Annual Report for End 1997, COM(1999)157, p. 32 for the Netherlands and p. 38 for the
         United Kingdom, the missing of the objectives was not so obvious, at least for the latter Member State, one year later.