Kingdom of Spain v Council of the European Union.
Date: 2008-05-15
22. It follows from that article that a Member State may, in the course of legal proceedings, challenge the legality of a regulation against which it has not brought an action for annulment before the expiry of the time-limits laid down in the fifth paragraph of Article 230 EC. It should be pointed out in that regard that since the right of the Member States to bring an action for annulment of a regulation is not limited, the plea of inadmissibility raised by the Council and the Commission – to the effect, essentially, that a Member State may not plead the illegality of a regulation after the expiry of the abovementioned time-limits if it could have sought the annulment thereof within those time-limits – would mean, if accepted, that Member States do not have the right to query, in the course of legal proceedings, the legality of a regulation in order to invoke its inapplicability before the Court. As the Advocate General points out in paragraph 61 of his Opinion, since such an approach would constitute an infringement of the terms of Article 241 EC which gives that right to ‘any party’ (see Case C‑11/00 Commission  v ECB  [2003] ECR I‑7147, paragraph 76), the plea of inadmissibility must be rejected.
23. As regards the plea of inadmissibility raised by the Council and the Commission contending that the plea of illegality raised by the Kingdom of Spain is out of time, it is common ground that the plea of illegality was formally submitted in the reply, after delivery of the judgment in Spain  v Council  dismissing the applicant’s action challenging Articles 3, 4 and 6 of Regulation No 1954/2003, whereas, to be admissible, such a plea should, in principle, have been raised in the application and, contrary to the Kingdom of Spain’s argument, dismissal of that action cannot be regarded as constituting a matter of fact or of law which came to light in the course of the procedure within the meaning of Article 42(2) of the Rules of Procedure (see, to that effect, Case 11/81 Dürbeck  v Commission  [1982] ECR 1251, paragraph 17).
25. It should also be noted that the plea of illegality raised by the Kingdom of Spain in regard to Regulation No 1954/2003 does not infringe the principle of res judicata . That principle extends only to matters of fact and of law actually or necessarily settled by the judicial decision in question (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others  v Commission  [2002] ECR I‑8375, paragraph 44 and the case-law cited therein). However, in its judgment in Spain  v Council , the Court did not rule on the legality of Articles 3, 4 and 6 of Regulation No 1954/2003 – covered by the plea of illegality raised in the present case – but rejected the pleas on the basis of which annulment of those articles was sought, on the ground that the pleas were inadmissible.
35. Compliance with the principle of non-discrimination, as laid down in Article 34(2) EC, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C‑44/94 Fishermen’s Organisations and Others  [1995] ECR I‑3115, paragraph 46; Case C‑304/01 Spain  v Commission  [2004] ECR I‑7655, paragraph 31; and Case C‑141/05 Spain  v Council  [2007] ECR I‑0000, paragraph 40).
40. Consequently, the Kingdom of Spain found itself, as it claims, in a different situation from the other Member States at the time that Regulation No 1954/2003 was adopted, marked, in particular, by no increase, in the period from 1998 to 2002, in the fishing opportunities as limited by the Act of Accession and by the number of Spanish vessels which could be in the Irish Box at the same time being limited to 40.
49. As the Court has held time and again, a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see Case C‑331/88 FEDESA and Others  [1990] ECR I‑4023, paragraph 24, and Case C‑110/97 Netherlands  v Council  [2001] ECR I‑8763, paragraph 137).