1 By their appeal, Mr Salvatore Aniello Pappalardo, Pescatori La Tonnara Soc. coop., Fedemar Srl, Testa Giuseppe & C. Snc, Pescatori San Pietro Apostolo Srl, Camplone Arnaldo & C. Snc di Camplone Arnaldo & C. and Valentino Pesca Sas di Camplone Arnaldo & C. (‘the appellants’) ask the Court of Justice to set aside the judgment of the General Court of the European Union of 27 April 2016, Pappalardo and Others v Commission (T‑316/13, not published, ‘the judgment under appeal’, EU:T:2016:247), by which the General Court dismissed their action seeking damages for the harm allegedly suffered following the adoption of Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and in the Mediterranean Sea (OJ 2008 L 155, p. 9).
2 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), seeks to establish a multiannual approach to fisheries management in order to ensure the long-term viability of that sector.
3 Article 7 of Regulation No 2371/2002, which is entitled ‘Commission emergency measures’, states: ‘1. If there is evidence of a serious threat to the conservation of living aquatic resources, or to the marine eco-system resulting from fishing activities and requiring immediate action, the Commission, at the substantiated request of a Member State or on its own initiative, may decide on emergency measures which shall last not more than six months. The Commission may take a new decision to extend the emergency measures for no more than six months. 2. The Member State shall communicate the request simultaneously to the Commission, to the other Member States and to the Regional Advisory Councils concerned. They may submit their written comments to the Commission within five working days of receipt of the request. The Commission shall take a decision within 15 working days of receipt of the request referred to in paragraph 1. 3. The emergency measures shall have immediate effect. They shall be notified to the Member States concerned, and published in the [Official Journal of the European Union]. 4. The Member States concerned may refer the Commission decision to the Council within 10 working days of receipt of the notification. 5. The Council, acting by qualified majority, may take a different decision within one month of the date of receipt of the referral.’
4 Article 1 of Regulation No 530/2008 provides: ‘Fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean by purse seiners flying the flag of or registered in Greece, France, Italy, Cyprus and Malta shall be prohibited as from 16 June 2008. …’
5 Article 2 of that regulation is worded as follows: ‘Fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean by purse seine[r]s flying the flag of or registered in Spain shall be prohibited as from 23 June 2008. …’
6 In 2008 the appellants, as owners of seiners flying the flag of Italy, were allocated quotas for purse-seine fishing for bluefin tuna.
7 Under Article 1 of Regulation No 530/2008, purse seiners flying the flag of Greece, France, Italy, Cyprus or Malta were prohibited from purse-seine fishing for bluefin tuna from 16 June 2008. By contrast, for purse seiners flying the Spanish flag, that prohibition took effect only from 23 June 2008, in accordance with Article 2 of that regulation.
8 In the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), the Court declared Regulation No 530/2008 to be invalid in so far as the prohibitions it contained regarding purse seiners flying the Spanish flag and Community operators who had concluded contracts with them took effect from 23 June 2008, whereas those prohibitions applied from 16 June 2008 for purse seiners flying the flag of Greece, France, Italy, Cyprus or Malta and for Community operators who had concluded contracts with them, without that difference in treatment being objectively justified in the light of the objective pursued by Article 7(1) of Regulation No 2371/2002.
9 Moreover, the General Court, by order of 14 February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), declared that there was no need to adjudicate on the Italian Republic’s action for annulment of Article 1 of Regulation No 530/2008 on the ground that, as the Court of Justice had declared the regulation to be invalid in its entirety, the Italian Republic’s action had become devoid of purpose.
10 On the same day, the General Court, by order of 14 February 2012, Federcoopesca and Others v Commission (T‑366/08, not published, EU:T:2012:74), dismissed, as inadmissible, the action brought by, among others, the appellants for annulment of Regulation No 530/2008.
11 By application lodged at the Registry of the General Court on 11 June 2013, the appellants, considering that they had suffered harm as a result of the unlawful conduct of the Commission in adopting Regulation No 530/2008, brought an action for damages seeking compensation for the harm which they consider themselves to have suffered, namely a sum corresponding to the difference between the notional income they would have made from bluefin tuna fishing by exhausting the quotas that had been allocated to them for 2008 and the income which they actually made following the early prohibition of bluefin tuna fishing.
12 By order of 30 September 2013, the President of the Third Chamber of the General Court suspended its examination of that case until such time as the Court of Justice gave judgment in particular in the appeals that had been brought in the meantime in Giordano v Commission (C‑611/12 P) and Buono and Others v Commission (C‑12/13 P and C‑13/13 P).
13 In its judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraphs 59 and 60), the Court of Justice, hearing an appeal against the judgment of 7 November 2012, Syndicat des thoniers méditerranéens and Others v Commission (T‑574/08, not published, EU:T:2012:583), held that the General Court had, in that judgment, misinterpreted the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), in holding that, by the latter judgment, the Court of Justice had declared Regulation No 530/2008 to be invalid in its entirety. In that regard, the Court of Justice made clear that the judgment in AJD Tuna had declared Regulation No 530/2008 invalid only to the extent that it granted more favourable treatment to Spanish seiners, but had upheld the validity of the date of the prohibition of bluefin tuna fishing set in Article 1 of Regulation No 530/2008 for purse seiners flying the flag of Greece, France, Italy, Cyprus or Malta.
14 Before deciding on the appellants’ action for damages, the General Court invited them to express their views on the Court of Justice’s judgments in those cases. The Commission and the appellants submitted their observations by letters lodged at the Registry of the General Court on 6 and 10 November 2014 respectively.
15 In the judgment under appeal, the General Court, after recalling the conditions that must be satisfied in order for the European Union to incur non-contractual liability, went on to examine, in particular, the requirement relating to the illegality of the Commission’s conduct complained of in the present case.
16 Thus, in paragraphs 24 to 26 of the judgment under appeal, the General Court held, in essence, that consideration of that requirement was linked, in particular, to the issue of the validity of Regulation No 530/2008, as analysed by the Court of Justice in the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), and further clarified in the judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284), which, in the General Court’s view, called in question its own reasoning in the order of 14 February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70).
17 In that context, the General Court held, in paragraph 27 of the judgment under appeal, (i) that the appellants could not take that order as a basis for arguing that Regulation No 530/2008 was invalid in its entirety and (ii) that Article 1 of the regulation was valid in their regard.
18 The General Court, considering, however, that the question as to whether the appellants’ action was well founded was not settled merely because that argument had been rejected, examined, in paragraphs 34 to 40 of the judgment under appeal, whether the Commission had manifestly and gravely disregarded the limits on its discretion when it adopted Regulation No 530/2008.
19 It pointed out in that regard that the Commission had a broad discretion in the sphere of fisheries, that account had to be taken of the Commission’s objectives in adopting Regulation No 530/2008 and that the setting of two different dates for a fishing prohibition could be justified if it allowed those objectives to be better attained.
20 The General Court also pointed out, in paragraphs 38 and 39 of the judgment under appeal, that the discrimination censured by the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), related solely to purse seiners flying the Spanish flag.
21 It concluded on that basis that the appellants had failed to establish that the Commission had manifestly and gravely disregarded the limits on its discretion and dismissed their action in its entirety, without examining the other conditions for the establishment of non-contractual liability on the part of the European Union.
22 The appellants claim that the Court should: - set aside the judgment under appeal; - in the alternative, uphold their claim for compensation for the alleged harm; and - order the Commission to pay the costs.
23 The Commission contends that the Court should: - dismiss the appeal; and - order the appellants to pay the costs.
24 The appellants put forward two grounds in support of their appeal, alleging errors of law (i) in the assessment of the principle of res judicata and (ii) in the application of the requirement relating to unlawful conduct on the part of the Commission.
25 As regards the first ground of appeal, the appellants maintain that the General Court, in holding that only Article 2 of Regulation No 530/2008 was invalid, disregarded the fact that the order of 14 February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), had the force of res judicata.
26 They argue that the General Court had declared in that order that there was no need to adjudicate on the Italian Republic’s action for annulment of Article 1 of Regulation No 530/2008, since, following the delivery of the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), the result sought by the Italian Republic had been achieved. The General Court thus decided the question of the validity of that regulation by indicating that the latter had been held invalid in its entirety.
27 The appellants submit that, although the Court of Justice made clear, in the judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284), that that invalidity extended only to Article 2 of the regulation, the effects of such a judgment, which concerned an action for damages, are limited, as the purpose of such an action is not to obtain a declaration that a measure is invalid.
28 They further argue that the system of varying decisions of the General Court by the appeal mechanism does not justify depriving a judgment that has become final of the force of res judicata simply because it is given by a lower court.
29 In addition, the appellants submit that the General Court infringed the principle of legitimate expectations in choosing to follow an interpretation of the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), based on the judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284), instead of referring to the findings that it itself had made in its order of 14 February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), a fortiori because, unlike the judgment in Buono and Others v Commission, that order was made before the appellants brought their action.
30 The Commission contends that the first ground of appeal should be rejected.
31 In support of their first ground of appeal, the appellants maintain that the General Court, in breach of the principle of res judicata, accepted, erroneously, the clarification given by the Court of Justice in its judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284), concerning the scope of the declaration of invalidity of Regulation No 530/2008 in the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), instead of following the interpretation which the General Court gave to the latter judgment in its order of 14 February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70).
32 The Court has on various occasions noted the importance in the EU legal order of the principle of res judicata (judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 123 and the case-law cited).
33 Here, as the General Court in essence observed, in paragraph 25 of the judgment under appeal, the Court of Justice held in its judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), in response to a request for a preliminary ruling concerning the validity of Regulation No 530/2008, that the regulation was invalid in so far as the fishing prohibitions it laid down took effect from 23 June 2008 solely for Spanish fishermen, while purse seiners flying the flags of Greece, France, Italy, Cyprus and Malta were subject to those prohibitions from 16 June 2008, without that difference in treatment being objectively justified. As has been explained in paragraph 13 of the present judgment, the Court made clear in its judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraphs 59 and 60) -- which was given in the appeal brought against the judgment of the General Court deciding upon a claim for compensation brought by French fishermen -- that the invalidity of Regulation No 530/2008 concerned only Article 2 thereof, which related to Spanish fishermen, and that Article 1 of the regulation therefore continued to be valid in relation to purse seiners flying the flag of or registered in Greece, France, Italy, Cyprus or Malta.
34 First, by virtue of the force of res judicata attaching to decisions of the Court of Justice concerning the validity of an EU act, such decisions have full effect despite any differences of interpretation to which they may give rise.
35 Thus, even if it is accepted that any uncertainty there may have been as to the exact scope of the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), was finally dispelled only as a result of the clarification provided in the judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284), the fact remains that the first judgment (AJD Tuna) must be deemed to have had, from the time of its delivery, the scope as defined in the second judgment (Buono and Others v Commission) (see, by analogy, judgment of 12 February 2008, Kempter, C‑2/06, EU:C:2008:78, paragraph 35).
36 Second, it is not disputed that, in the order of 14 February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), the General Court decided that there was no need to adjudicate on the Italian Republic’s action for annulment of Regulation No 530/2008.
37 It follows from well-established case-law of the Court of Justice that the force of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 123).
38 Therefore, since the General Court did not adjudicate on the action brought by the Italian Republic for annulment of Regulation No 530/2008, there is no ground for complaining that it made an error of law in examining, in the judgment under appeal, the appellants’ claim for compensation on the basis of the judgments of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), and of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284).
39 As to the appellants’ argument concerning the legitimate expectations which they claim to have derived from the order of the General Court of 14 February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), it should be recalled that, in accordance with settled case-law of the Court of Justice, the right to rely on the principle of the protection of legitimate expectations extends to any person whom an institution of the European Union has caused, by giving him precise assurances, to entertain justified hopes. Information which is precise, unconditional and consistent, in whatever form it is given, constitutes such assurances (judgment of 16 December 2010, Kahla Thüringen Porzellan v Commission, C‑537/08 P, EU:C:2010:769, paragraph 63 and the case-law cited). By contrast, a person may not plead breach of that principle unless he has been given those assurances (judgment of 16 December 2008, Masdar (UK) v Commission, C‑47/07 P, EU:C:2008:726, paragraph 81).
40 Even if a judicial decision were able, on its own, to give rise to a right to entertain justified hopes within the meaning of that case-law, it is sufficient to state that the appellants cannot, in any event, derive any precise assurance concerning the scope of a decision of the Court of Justice from an order by which the General Court held that there was no need to adjudicate, such as the order of 14 February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70).
41 In the light of the foregoing considerations, the first ground of appeal must be rejected as unfounded.
42 In support of their second ground of appeal, the appellants maintain that, in paragraph 40 of the judgment under appeal, the General Court made an error of law in holding that the difference in treatment found by the Court of Justice in the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153) did not amount to a serious and manifest breach, by the Commission, of the principle of non-discrimination.
43 According to the appellants, it follows both from the Opinion of Advocate General Trstenjak in AJD Tuna (C‑221/09, EU:C:2010:500) and from the judgment of the Court of Justice in the same case (judgment of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2010:153) that the difference in treatment at issue in that case was not objectively justified and therefore constituted a serious and manifest breach of the principle of non-discrimination on grounds of nationality.
44 They submit that that argument is not undermined by the grounds relied on by the General Court, in paragraphs 36 to 39 of the judgment under appeal, in deciding that the Commission had not committed a sufficiently serious breach of the principle of non-discrimination.
45 The Commission contends that the second ground of appeal should be rejected. It asserts in that regard that the General Court made an error of law in holding, in paragraph 34 of the judgment under appeal, that the appellants were able to rely, in support of their action, on the finding of illegality in respect of Regulation No 530/2008, even though, as the General Court rightly held, they were not concerned by that illegality, the regulation remaining valid in their regard. Since that error of law does not affect the operative part of the judgment under appeal, the Commission requests the Court of Justice to replace the relevant grounds of that judgment.
46 By their second ground of appeal, the appellants complain, in essence, that the General Court held, wrongly, that the breach of the principle of non-discrimination arising from the fact that Spanish fishermen were able, under Article 2 of Regulation No 530/2008, to fish for bluefin tuna for one week more than purse seiners flying the flag of or registered in Greece, France, Italy, Cyprus or Malta was neither sufficiently grave nor sufficiently clear to constitute a serious breach of that principle by the Commission. In response, the Commission, whilst taking the view that the operative part of the judgment under appeal must be upheld, argues that that judgment contains an error of law in so far as the General Court held that the appellants could rely, in support of their action, on that breach of the principle of non-discrimination.
47 The Court will start by examining the Commission’s argument on this point.
48 In paragraphs 16, 17 and 23 of the judgment under appeal, the General Court noted that it follows from settled case-law of the Court of Justice that in order for the European Union to incur non-contractual liability, a number of conditions must be satisfied, which include the condition that the conduct alleged against the institutions be unlawful on account of a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, to that effect, judgment of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraphs 106, 172 and 173).
49 The General Court further explained that, in accordance with that case-law, if any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for such liability (judgments of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 57, and of 30 April 2009, CAS Succhi di Frutta v Commission, C‑497/06 P, not published, EU:C:2009:273, paragraph 40).
50 In paragraph 34 of the judgment under appeal, the General Court held that there was, in the circumstances of the present case, a breach of such a rule of law given that Regulation No 530/2008 was vitiated by a failure to observe the principle of non-discrimination, which is a general principle of EU law for the protection of individuals. In paragraphs 35 to 40 of that judgment, the General Court therefore considered whether in the circumstances there had been a sufficiently serious breach of that principle and concluded that that had not been the case.
51 In proceeding in that way, the General Court, implicitly but necessarily, held that the appellants could rely on the illegality vitiating Regulation No 530/2008 in support of their action for damages.
52 However, it follows from the Court’s settled case-law that the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (judgment of 10 November 2011, The Rank Group, C‑259/10 and C‑260/10, EU:C:2011:719, paragraph 62).
53 In paragraphs 31 and 32 of the judgment under appeal, the General Court observed, rightly, that in the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), the Court had declared Regulation No 530/2008 to be invalid only to the extent that purse seiners flying the Spanish flag were given an extra week of fishing, but had upheld the validity of the regulation in so far as it prohibited bluefin tuna fishing by Greek, French, Italian, Cypriot and Maltese seiners from 16 June 2008.
54 Thus, as the Court decided in the judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284), the breach of the principle of non-discrimination arising from Article 2 of Regulation No 530/2008 did not affect the validity of Article 1 of that regulation with regard, in particular, to the appellants’ situation.
55 In those circumstances, as the Commission has argued, the General Court could not, without making an error of law, hold, in paragraph 34 of the judgment under appeal, that the appellants were nonetheless fully entitled to rely, in support of their action, on the breach of that principle, provided that that breach was sufficiently serious. Since the illegality affecting Regulation No 530/2008, which worked in favour of Spanish seiners, did not concern the appellants’ situation, the appellants could not rely on that illegality for the purposes of their action.
56 It follows that the General Court erred in law in holding otherwise.
57 That said, it is settled case-law of the Court of Justice that, if the grounds of a decision of the General Court contain an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and a substitution of grounds must be made (judgment of 26 January 2017, Mamoli Robinetteria v Commission, C‑619/13 P, EU:C:2017:50, paragraph 107 and the case-law cited).
58 It follows from the reasoning set out in paragraphs 52 to 56 of the present judgment that in the circumstances of this case there can be no non-contractual liability on the part of the European Union vis-à-vis the appellants. Accordingly, the error of law in the judgment under appeal cannot cause that judgment to be set aside in so far as it dismissed the appellants’ action seeking to put such liability in issue.
59 In view of those considerations, the second ground of appeal must be rejected as ineffective.
60 The appeal must therefore be dismissed in its entirety.
61 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, 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 applied for costs and the appellants have been unsuccessful, they should be ordered to pay the costs relating to the present appeal.