Kingdom of Spain v Council of the European Union.
Date: 2007-11-08
28. It follows that the Commission, as intervener, had no standing to raise a plea of inadmissibility (see Case C‑107/99 Italy  v Commission  [2002] ECR I‑1091, paragraph 29).
40. Compliance with the principle of non-discrimination 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; Joined Cases C‑87/03 and C‑100/03 Spain  v Council , paragraph 48; and Case C‑134/04 Spain  v Council , paragraph 28).
44. The Court, however, took the view that the Republic of Portugal’s situation was not comparable to that of the other Member States which had received allocations. It held that, in so far as the Act of Accession did not change the existing situation as regards the allocation of external resources, the existing Community rules continued to be applicable and that, accordingly, the new Member States could not rely on circumstances prior to accession, in particular their fishing activities during the reference period, in support of their contention that the provisions in question should not be applied. Since their accession, they had been in the same position as the Member States excluded from the allocations under the principle of relative stability of fishing activities, which was reflected, as far as the agreements concluded before accession were concerned, in the allocation effected in 1983 ( Portugal and Spain  v Council , paragraphs 43 and 44; Joined Cases C‑87/03 and C‑100/03 Spain  v Council , paragraph 52; and Case C‑134/04 Spain  v Council , paragraph 32).
45. That reasoning is applicable to the present case. It follows that the Kingdom of Spain is not in a situation comparable to that of the Member States which received quotas in the initial allocation and, consequently, it cannot rely on the fishing activities carried on by Spanish vessels between 1973 and 1976 in the North Sea, during the initial reference period. Its situation is, by contrast, comparable to that of the Member States the vessels of which did not obtain such quotas, whether or not those Member States carried on fishing activities in the waters of the North and/or Baltic Seas during that period (see Joined Cases C‑87/03 and C‑100/03 Spain  v Council , paragraph 53, and Case C‑134/04 Spain  v Council , paragraph 33).
47. The Council submitted, rightly, that it is important to distinguish between the concept of access to Community waters and the concept of access to resources. While, after the end of the transitional period, the Kingdom of Spain may again have access to the waters of the North and Baltic Seas, it does not follow that Spanish vessels can have access to the resources of those seas in the same proportions as the vessels of the Member States which participated in the initial or subsequent allocations (Joined Cases C‑87/03 and C‑100/03 Spain  v Council , paragraph 55, and Case C‑134/04 Spain  v Council , paragraph 35).
48. The Council was entitled to form the view that, since Spanish vessels had not fished in the waters of the North and Baltic Seas for more than 20 years, the failure to allocate quotas did not infringe the principle of relative stability of the fishing activities of the populations concerned. It follows that the Council was also entitled to form the view that the Kingdom of Spain was not in a position equivalent to that of the Member States the vessels of which had recently, during the relevant reference period, fished in those waters (see Joined Cases C‑87/03 and C‑100/03 Spain  v Council , paragraph 56, and Case C‑134/04 Spain  v Council , paragraph 36).
59. It must be observed, as the Council argues, that Articles 156 to 164 of the Act of Accession define the regime applicable in the fishing sector only during the transitional period. Those articles cannot therefore serve, in principle, as the basis for claims concerning a period commencing on a date subsequent to the end of that transitional period (see Joined Cases C‑87/03 and C‑100/03 Spain  v Council , paragraph 64, and Case C‑134/04 Spain  v Council , paragraph 44).
62. As regards the allocations of quotas during the transitional period, these are governed not by the Act of Accession but by the regulations establishing the quotas in question and by the principle of relative stability (see Joined Cases C‑87/03 and C‑100/03 Spain  v Council , paragraph 66, and Case C‑134/04 Spain  v Council , paragraph 47). As for the allocations made for the first time under Regulation No 27/2005, they are also not subject to the provisions of the Act of Accession.
86. The Court has held that the requirement of relative stability must be understood as meaning that each Member State is to retain a fixed percentage and that the allocation formula originally laid down will continue to apply as long as an amending regulation has not been adopted (see, inter alia, Romkes , paragraph 17, and Joined Cases C‑87/03 and C‑100/03 Spain  v Council , paragraph 27).
92. As regards a regulation concerning fisheries, within the context of the common agricultural policy, it is settled case-law that the Community legislature has a wide discretion in this field, corresponding to the political responsibilities given to it by Articles 34 EC to 37 EC (see, inter alia, Case C‑535/03 Unitymark and North Sea Fishermen’s Organisation [2006] ECR I‑2689, paragraph 55).
99. As regards the selection of the reference period, the Court has already ruled that the Council has a degree of flexibility (see, to that effect, Case C‑120/99 Italy  v Council  [2001] ECR I‑7997, paragraph 42). The period of five years, from 1999 to 2003, is a recent and sufficiently long period as not to be open to criticism.