Portuguese Republic and Kingdom of Spain v Council of the European Communities.
Date: 1992-10-13
14 As regards the legal basis of the contested regulation, it should be noted that it is expressly stated to be Article 11 of Regulation No 170/83, which, referring inter alia to Article 4(1) of the same regulation, empowers the Council, acting by a qualified majority on a proposal from the Commission, to determine the distribution between Member States of the volume of catches available to the Community. Since Regulation No 170/83 is itself based on Article 43 of the Treaty, Article 11 thereof constitutes an appropriate and sufficient legal basis for the adoption of the contested regulation. As the Court held in its judgment in Case 46/86 Romkes v Officier van Justitie [1987] ECR 2681, paragraph 16, the Council cannot be required to draw up all the details of the regulations concerning the common agricultural policy according to the procedure laid down in Article 43 of the Treaty; on the contrary, it is sufficient for the purposes of that provision that the basic elements of the matter to be dealt with have been adopted in accordance with the procedure laid down by that provision; the provisions implementing the basic regulations may be adopted by the Council according to a different procedure, as envisaged by the said Article 11.
16 As regards the alleged absence, in the statement of the reasons on which the contested regulation is based, of any details concerning the factual and legal reasons which prompted the Council to include certain Member States in the distribution and to exclude, in particular, the applicants, it must be borne in mind that the Court has consistently held that the statement of reasons required by Article 190 of the Treaty must be appropriate to the nature of the measure in question. It must show clearly and unequivocally the reasoning of the Community authority which adopted the measure so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review. It is also apparent from the case-law that the statement of reasons on which a measure is based is not required to specify the various matters of fact and law dealt with in the measure, provided that the measure falls within the general scheme of the body of measures of which it forms part (see, in particular, the judgment in Case 250/84 Eridania v Cassa Conguaglio Zucchero [1986] ECR 117, paragraphs 37 and 38).
28 The first point to note is that, according to Article 2(2) of Regulation No 170/83, the measures restricting catches concern species or groups of species; secondly, according to Article 4(1) of the same regulation, relative stability must be assured, for each Member State, "for each of the stocks considered", that is to say for fish of a particular species located within a specified geographical area. However, it is common ground that it is impossible to evaluate the precise volume of such stocks, which may fluctuate upwards or downwards from one year to the next as a result, essentially, of the biological evolution of species. That is why the Court made it clear in Romkes, cited above, that relative stability of fishing activities must be understood as meaning maintenance of a fixed percentage for each Member State and not, therefore, the guarantee of a fixed quantity of fish.
31 As regards the argument concerning the accession of the Portuguese Republic and the Kingdom of Spain to the Community on 1 January 1986, it must be stated that the objective fact of accession cannot in itself produce legal effects, since the conditions of accession are set out in the Act of Accession.
32 In the present case, Article 2 of the relevant Act of Accession provides that, from the date of accession, the provisions of the original Treaties and the acts adopted by the institutions of the Communities before accession are to be binding on the new Member States and are to apply in those States under the conditions laid down in those Treaties and in the Act of Accession itself.
34 In those circumstances, pursuant to Article 2 of the Act of Accession, the existing Community rules must be applied, in particular the principle of relative stability as laid down by Regulation No 170/83, which moreover has not been amended in any way, with the exception of a technical adjustment to the number of votes in the decision-making procedure referred to in Article 14(2) (Annex I, point XV, of the Act of Accession), and as interpreted by the Court.
41 The breach of the principle of non-discrimination derives essentially, according to the Portuguese Government, from the fact that from 1973 to 1977, that is to say approximately during the reference period on the basis of which the formula for distribution between the Member States was arrived at in 1983, the Portuguese fleet caught, in Greenland waters, on average the same quantity of cod as that caught by the Federal Republic of Germany and almost thirteen times more than the quantity caught by the United Kingdom.
43 It must be observed that the applicants' situation is not comparable with that of the other Member States included in the distribution, if account is taken of the provisions of the Act of Accession, as indicated above, regarding the integration of the new Member States in the common fisheries policy, and more particularly regarding the external fishery resources already available and distributed at the time of accession.
44 In so far as the Act of Accession did not change the existing situation as regards the distribution of external resources, the existing Community rules continue to be applicable. Accordingly, the new Member States cannot rely on circumstances antedating 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 have been in the same position as the Member States excluded from the distributions under the principle of relative stability of fishing activities, which was reflected, as far as the agreements concluded before accession are concerned, in the distribution effected in 1983. This conclusion cannot be undermined by the fact that, as a result of their accession, the new Member States no longer have the power to conclude independent agreements, which places them in a situation identical to that of all the other Member States, or by the fact that they did not receive anything in return for the external resources which they brought into the Community.
52 This plea in law must be rejected. It is important to note that Article 5 of the Treaty lays down the principle of sincere cooperation in relations between the Member States and the Community institutions. That principle not only requires the Member States to take all the measures necessary to guarantee the application and effectiveness of Community law but also imposes on the Member States and the Community institutions mutual duties of sincere cooperation (see the order in Case C-2/88 Imm. Zwartveld and Others [1990] ECR I-3365, paragraph 17).
53 The adoption of a legislative measure by the Council cannot constitute either a breach of the obligation imposed on the Member States to guarantee the application and effectiveness of Community law, the defence by each Member State of its interests within the Council manifestly not falling within the scope of that obligation, or a breach of the duty of sincere cooperation attaching to the Council as an institution.