AJD Tuna Ltd v Direttur tal-Agrikoltura u s-Sajd and Avukat Generali.
Date: 2011-03-17
36. In that regard, it should be noted that the Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure, if it considers that it lacks sufficient information or that the case should be decided on the basis of an argument which has not been discussed between the parties (see, inter alia, Case C-284/06 Burda [2008] ECR I-4571, paragraph 37, and Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I-7633, paragraph 31).
45. So far as the criticisms of the content of the Advocate General’s Opinion are concerned, it should be noted that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. In carrying out that task, the Advocate General may, where appropriate, analyse a reference for a preliminary ruling by placing it within a context which is broader than that strictly defined by the referring court or by the parties to the main proceedings. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see Case C‑229/09 Hogan Lovells International [2010] ECR I‑0000, paragraph 26).
51. The criterion for distinguishing between a regulation and a decision must be sought in the general application or otherwise of the act in question (see, inter alia, the order of 12 July 1993 in Case C‑168/93 Gibraltar and Gibraltar Development  v Council  [1993] ECR I-4009, paragraph 11). A measure is of general application if it applies to objectively determined situations and produces legal effects wit h respect to categories of persons envisaged in general and in the abstract (see, inter alia, Case 307/81 Alusuisse Italia  v Council and Commission  [1982] ECR 3463, paragraph 9).
54. Moreover, Article 47 of the Charter, in that it provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal, is the reaffirmation of the principle of effective judicial protection, which is a general principle of Community law stemming from the constitutional traditions common to the Member States (see Case C‑432/05 Unibet  [2007] ECR I‑2271, paragraph 37, and Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation  v Council and Commission  [2008] ECR I-6351, paragraph 335).
58. It should be noted that, according to settled case-law, the statement of reasons required by Article 296(2) TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296(2) TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, inter alia Case C‑5/01 Belgium  v Commission  [2002] ECR I‑11991, paragraph 68; Case C‑501/00 Spain  v Commission  [2004] ECR I‑6717, paragraph 73; and judgment of 5 March 2009 in Case C‑479/07 France  v Council , paragraph 49).
59. It is also clear from settled case-law that the scope of the obligation to state reasons depends on the nature of the measure in question and that, in the case of measures of general application, the statement of reasons may be confined to indicating the general situation which led to its adoption and the general objectives which it is intended to achieve.  In that context, the Court has ruled in particular that if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (see, inter alia, Case C‑168/98 Luxembourg  v Parliament and Council  [2000] ECR I-9131, paragraph 62; Case C‑361/01 P Kik  v OHIM  [2003] ECR I‑8283, paragraph 102; and Case C‑304/01 Spain  v Commission  [2004] ECR I‑7655, paragraph 51).
60. The Court has also held that the obligation to state reasons laid down in Article 296(2) TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see, to that effect, Case C‑113/00 Spain  v Commission  [2002] ECR I‑7601, paragraph 47, and France  v Council , paragraph 50).
63. As regards proof of the existence of a serious threat to conservation of bluefin tuna stocks, recitals 1 to 3 in the preamble to the Regulation note the importance of the TACs fixed for bluefin tuna under the multi-annual recovery plan for that fish stock. Moreover, recital 6 in the preamble to the Regulation states that the information obtained by Commission inspectors shows that the fishing opportunities allocated to purse seiners were likely to be exhausted before the normal end of the fishing season. Consequently, the Commission satisfied the obligation to state reasons in the Regulation as regards the existence of a serious threat to the conservation of the bluefin tuna stock in the Eastern Atlantic Ocean and the Mediterranean.
64. As regards evidence that the threat to conservation of that stock resulted from the fishing activities of purse seiners and the subsequent landing of those fish at the premises of Community operators, first, recital 7 in the preamble to the Regulation states that the Scientific Committee of ICCAT considers that the overcapacity of such vessels is the main factor which could lead to the collapse of the bluefin tuna stock in the Eastern Atlantic and the Mediterranean.
65. Second, recital 8 in the preamble to the Regulation states that the information in the Commission’s possession shows that the Member States have not ensured full compliance with the requirements established in Regulation No 1559/2007, the objective of which is the recovery of the bluefin tuna stock in the Eastern Atlantic and the Mediterranean.
66. In that regard, it should be noted that it is imperative that the Member States fulfil the obligations incumbent on them under the European Union rules in order to ensure the protection of fishing grounds, the conservation of the biological resources of the sea and their exploitation on a sustainable basis in appropriate economic and social conditions (see, in relation to failure to comply with the quota system for the 1991 to 1996 fishing years, Joined Cases C-418/00 and C-419/00 Commission  v France  [2002] ECR I-3969, paragraph 57).
71. It should be noted that the right to rely on the principle of the protection of legitimate expectations extends to any individual in a situation in which it appears that the Community administration has led him to entertain reasonable expectations (see, to that effect, Case 265/85 Van den Bergh en Jurgens and Van Dijk Food Products (Lopik)  v EEC  [1987] ECR 1155, paragraph 44, and Joined Cases C‑37/02 and C‑38/02 Di Lenardo and Dilexport [2004] ECR I‑6911, paragraph 70).
72. In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes such assurances (see Case C‑537/08 P Kahla Thüringen Porzellan  v Commission  [2010] ECR I‑0000, paragraph 63). However, a person may not plead breach of that principle unless he has been given precise assurances by the administration (see Joined Cases  C‑182/03 and C‑217/03 Belgium and Forum 187  v Commission  [2006] ECR I‑5479, paragraph 147, and judgment of 25 October 2007 in Case C‑167/06 P Komninou and Others  v Commission , paragraph 63).
73. Similarly, if a prudent and alert economic operator can foresee the adoption of a Community measure likely to affect his interests, he cannot plead that principle if the measure is adopted (see Van den Bergh en Jurgens and Van Dijk Food Products (Lopik)  v EEC , paragraph 44, and Belgium and Forum 187  v Commission , paragraph 147).
77. By these questions, the referring court seeks, in essence, to ascertain from the Court whether the Regulation infringes the principle of proportionality in that it prohibits Community operators, with effect from a certain date, from accepting landings of bluefin tuna or placing them in cages for fattening or farming even where they were caught before that date or were caught by ships flying the flag of a third country. The referring court also questions whether the measures adopted by the Regulation were appropriate for attaining the objective of recovery of the bluefin tuna stock.
78. As regards the date on which the bluefin tuna covered by the prohibition on landing were caught, it is apparent from recital 10 in the preamble to the Regulation that the prohibition on Community operators accepting landings, placing in cages for fattening or farming and transhipments in Community waters or ports of bluefin tuna caught by purse seiners in the Atlantic Ocean, east of longitude 45°W, and the Mediterranean was imposed in order to reinforce the effectiveness of the measures prohibiting fishing and are therefore merely ancillary to it. Accordingly, Article 3 of the Regulation must be interpreted, in the light of Articles 1 and 2 of that regulation, as meaning that the prohibition imposed on operators does not concern bluefin tuna caught before 16 June 2008 or 23 June 2008, depending on the flag of the seiner, irrespective of the date on which they were landed.
79. For the rest, the principle of proportionality, which is one of the general principles of European Union law, requires that measures implemented through a provision of European Union law be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, to that effect, Case C‑210/03 Swedish Match  [2004] ECR I‑11839, paragraph 47, and Case C-558/07 S.P.C.M. and Others  [2009] ECR I-5783, paragraph 41).
80. According to settled case-law, the European Union legislature enjoys a wide discretionary power in matters concerning agriculture, including fisheries, corresponding to the political responsibilities given to it by Articles 40 TFEU to 43 TFEU. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretionary power (see, to that effect, Case C‑189/01 Jippes and Others  [2001] ECR I‑5689, paragraph 80; Case C-304/01 Spain  v Commission , paragraph 23; and Case C‑535/03 Unitymark and North Sea Fishermen’s Organisation  [2006] ECR I‑2689, paragraph 55).
81. As regards judicial review of the conditions for implementing this principle, bearing in mind the wide discretion enjoyed by the European Union legislature in matters concerning the common agricultural policy, including fisheries, the legality of a measure adopted in that field can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see, to that effect, Unitymark and North Sea Fishermen’s Organisation , paragraph 57 and the case-law cited).
82. It is therefore necessary for the Court to determine whether the prohibition on Community operators accepting landings, placing in cages for fattening or farming and transhipments in Community waters or ports of bluefin tuna caught from 16 or 23 June 2008 by purse seiners in the Atlantic Ocean, east of longitude 45°W, and the Mediterranean was not manifestly inappropriate.
83. The Council’s objective in adopting Regulation No 1559/2007 was to implement the recovery plan for bluefin tuna recommended by ICCAT. Recovery was to be achieved, as stated in recital 3 in the preamble to that regulation, through a progressive reduction in the TACs. The latter, the figures for which are given in Article 3 of that regulation, are allocated among the European Union and the other Contracting Parties to ICCAT. Compliance with the quotas allocated to the Member States is therefore necessary in order to attain the objective of recovery of the bluefin tuna stock. Therefore the measures prohibiting fishing adopted by the Commission in the Regulation on the ground that exhaustion of the quotas was imminent are not manifestly inappropriate.
84. Similarly, the prohibition on Community operators accepting landings, placing in cages for fattening or farming and transhipments in Community waters or ports of bluefin tuna caught from 16 or 23 June 2008, irrespective of the flag of the purse seiner which caught them, is not manifestly inappropriate since it also permits the achievement of the objective of compliance with the TACs, the reduction of which will, in the long term, bring about recovery of bluefin tuna.
85. The answer to the fourth and fifth questions is therefore that examination of the questions referred has disclosed no factor of such a kind as to affect the validity of the Regulation as regards the principle of proportionality.
The sixth question
88. 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  [2006] ECR I-2915, paragraph 48; and Case C‑141/05 Spain  v Council [2007] ECR I-9485, paragraph 40).
93. It should be noted that the elements which characterise different situations, and their comparability, must in particular be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question (see, by analogy, Case C-127/07 Arcelor Atlantique et Lorraine and Others  [2008] ECR I‑9895, paragraph 26, and Case C-356/09 Kleist [2010] ECR I‑0000, paragraph 34).
105. In that regard, it should be noted that Article 5(2) of Regulation No 1559/2007 prohibits bluefin tuna fishing by purse seiners in the Eastern Atlantic and the Mediterranean between 1 July and 31 December, with no exception being made for Spanish seiners on grounds of the late start to their fishing season.
106. It follows from all the foregoing that it has not been established that Spanish seiners were in a situation which was objectively different from that of other seiners covered by the Regulation which would have justified in their case deferring until 23 June 2008 the entry into force of the prohibition in order to provide better protection for bluefin tuna stocks in the Eastern Atlantic and the Mediterranean.
107. Consequently, whilst it was acting on the basis of Article 7(1) of the Basic Regulation in order to end the threat of collapse of the stock of Eastern Atlantic and Mediterranean bluefin tuna as a result of the activity of purse seiners, the Commission deferred until 23 June 2008 the entry into force of the prohibition on fishing solely for Spanish seiners, although that additional time was not objectively justified in view of the objective pursued.
108. By acting in that way, the Commission treated Spanish seiners differently from other seiners without such differentiation being objectively justified. It follows that that infringement of the principle of non-discrimination affects the validity of the Regulation in so far as Spanish seiners were authorised to fish for bluefin tuna after 16 June 2008, and to retain on board, place in cages for fattening or farming, tranship, transfer and land such tuna after that date.