1 By application lodged at the Court Registry on 12 May 1997, the Kingdom of Spain brought an action for annulment of Commission Regulation (EC) No 494/97 of 18 March 1997 modifying Regulation (EEC) No 2868/88 establishing detailed rules for the application of the Joint International Inspection Scheme adopted by the North-West Atlantic Fisheries Organisation (OJ 1997 L 77, p. 5; hereinafter `Regulation No 2868/88, as amended'), in so far as it inserts Article 4(a)(6) in Commission Regulation (EEC) No 2868/88 of 16 September 1988 (OJ 1988 L 257, p. 20).
2 That regulation arose out of the European Community's relations with the North-West Atlantic Fisheries Organisation (NAFO), as consolidated by the Convention on Future Multilateral Cooperation in the North-West Atlantic Fisheries (hereinafter `the NAFO Convention') which was approved by Council Regulation (EEC) No 3179/78 of 28 December 1978 (OJ 1978 L 378, p. 1). One of the NAFO Convention's objectives is the conservation and optimum utilisation of the fishery resources of the North-West Atlantic area. In furtherance of that aim, a joint inspection scheme was set up to operate in the event of infringement, providing for reciprocal rights of boarding and inspection of vessels by the contracting parties and, where appropriate, for prosecution and sanctions.
3 In that context, a joint international inspection programme was adopted by the NAFO Fisheries Commission on 10 February 1988. That programme was declared applicable in the Community by Article 1 of Council Regulation (EEC) No 1956/88 of 9 June 1988 adopting provisions for the application of the scheme of joint international inspection adopted by the North-West Atlantic Fisheries Organisation (OJ 1988 L 175, p. 1) and is set out in an annex thereto.
4 Pursuant to Article 4 of Regulation No 1956/88, which provides that detailed rules for the implementation of that regulation are, if necessary, to be adopted in accordance with a special procedure, the Commission adopted Regulation No 2868/88.
5 On 20 April 1995 an agreement was concluded between the European Community and Canada on fisheries in the context of the NAFO Convention (hereinafter `the Agreement'). This was constituted in the form of an agreed minute (with annexes), an exchange of letters and an exchange of notes, and was approved by Council Decision 95/586/EC of 22 December 1995 (OJ 1995 L 327, p. 35). Point II.9(e) of Annex I to the agreed minute of the Agreement, entitled `Proposal for improving fisheries control and enforcement', provides as follows: `... (i) If a NAFO inspector cites a vessel for having committed, to a serious extent, a major apparent infringement, the Contracting Party of this vessel shall ensure that the vessel concerned is inspected by a duly authorised inspector of that Contracting Party within 48 hours. In order to preserve the evidence, the NAFO inspector shall take all necessary measures to ensure security and continuity of the evidence, including, as appropriate, sealing the vessel's hold, and may remain on board the vessel until the duly authorised inspector arrives. (ii) Where justified, the inspector of the Contracting Party of the vessel concerned shall, where duly authorised to do so, require the vessel to proceed immediately to a nearby port, chosen by the master, which should be either St. Pierre, St. John's, the Azores or the home port of the vessel, for a thorough inspection under the authority of the flag State and in the presence of a NAFO inspector from any other Contracting Party that wishes to participate. ... ... (iv) Where a vessel is required to proceed to port for a thorough inspection pursuant to paragraph ii above, a NAFO inspector from another Contracting Party may, subject to the consent of the Contracting Party of the vessel, board the vessel as it is proceeding to port, may remain on board the vessel as it proceeds to port and may be present during the inspection of the vessel in port. ...'
6 On 21 December 1995 the Council adopted Regulation (EC) No 3067/95 amending Regulation No 1956/88 (OJ 1995 L 329, p. 1; hereinafter `the Council Regulation'). With the object of implementing a number of the Agreement's provisions, that regulation inserts a new point - point 10 - in the annex to Regulation No 1956/88 which provides, in terms virtually identical to those of point II.9(e) of Annex I to the agreed minute of the Agreement, as follows: `... (i) If a NAFO inspector cites a vessel for having committed, to a serious extent, an apparent infringement as listed in paragraph 9, the Contracting Party of the vessel shall ensure that the vessel concerned is inspected within 72 hours by an inspector duly authorised by that Contracting Party. In order to preserve the evidence, the NAFO inspector shall take all necessary measures to ensure security and continuity of the evidence, and may remain on board the vessel, for the period necessary to provide information to the duly authorised inspector concerning the apparent infringement. (ii) Where justified, the competent authority of the flag Member State or the inspector authorised by the said authority of the vessel concerned shall, where duly authorised to do so, require the vessel to proceed immediately to a nearby port, chosen by the Master, which should be one of the following, St. John's, Halifax, the home port of the vessel or a port designated by the flag Member State, for a thorough inspection under the authority of the flag Member State and in presence of a NAFO inspector from any other Contracting Party that wishes to participate. ... ... (iv) Where a vessel is required to proceed to port for a thorough inspection pursuant to paragraph (ii), a NAFO inspector from another Contracting Party may, subject to the consent of the Contracting Party of the vessel, board the vessel as it is proceeding to port, may remain on board the vessel as it proceeds to port and may be present during the inspection of the vessel in port. ...'
7 Regulation No 494/97 inserted inter alia Articles 4(a) and 4(b) in Regulation No 2868/88. Article 4(a) provides: `1. Where the appropriate authorities of the flag Member State are notified, pursuant to paragraph 10(iii) of the Annex to Regulation (EEC) No 1956/88, by a NAFO inspector of an apparent serious infringement, as listed in paragraph 9 of the Annex to Regulation (EEC) No 1956/88, committed by a fishing vessel flying its flag or where the Commission receives such information, these appropriate authorities and the Commission shall immediately inform each other thereof. ... 5. Following the notification of his results and if the apparent infringement is serious, in accordance with the definition of infringements in paragraph 9 of the Annex to Regulation (EEC) No 1956/88, the appropriate authority of the flag Member State shall, if the situation requires, within 24 hours, itself require or authorise the duly authorised inspector to require the vessel to proceed to a designated port in accordance with paragraph 10(ii) of the Annex to Regulation (EEC) No 1956/88. ... In the event of a diversion, the duly authorised inspector shall take all necessary measures to ensure security and continuity of the evidence including, as appropriate, sealing the vessel's hold for eventual dockside inspection. 6. On arrival at the port of diversion, the suspect vessel shall be the subject of a thorough inspection carried out under the authority of the flag Member State, which may be attended by a NAFO inspector from any other Contracting Party wishing to take part. The flag Member State shall immediately inform the Commission of the results of the inspection, using the form in Annex I to this Regulation, and of the measures it has taken to deal with the infringement. ...' Article 4(b) of Regulation No 2868/88, as amended, provides: `1. When the Community inspectors suspect that a fishing vessel flying the flag of a Contracting Party has committed one of the serious infringements listed in paragraph 9 of the Annex to Council Regulation (EEC) No 1956/88, the inspectors in question shall, within 24 hours, inform the appropriate authorities of the flag State concerned and the Executive Secretariat of NAFO thereof, supplying them with all the elements on the basis of which they cited that vessel for having committed an apparent serious infringement. ... 2. The Commission shall decide, with the agreement of the Contracting Party responsible for the vessel, if a Community inspector is to remain on board when the vessel is diverted. The Commission shall also decide if a Community inspector is to be present during the thorough inspection of the suspect vessel, in port.'
8 The Kingdom of Spain argues that Article 4(a)(6), first sentence, of Regulation No 2868/88, as amended, under which `[o]n arrival at the port of diversion, the suspect vessel shall be the subject of a thorough inspection carried out under the authority of the flag Member State, which may be attended by a NAFO inspector from any other Contracting Party wishing to take part' is unlawful. Those words indicate that a NAFO inspector, whichever contracting party has appointed him, may attend the thorough inspection carried out at the port of diversion without there being any need to obtain the consent of the authorities of the flag Member State. By contrast, point 10(iv) of the annex to the Council Regulation and point II.9(e)(iv) of Annex I to the agreed minute of the Agreement provide that `the consent of the Contracting Party of the vessel' is required in such circumstances.
9 The Kingdom of Spain submits that the contradiction between the Council Regulation and Regulation No 2868/88, as amended - that is to say, between the basic regulation and the implementing regulation - renders the latter void. It therefore seeks annulment of Regulation No 494/97 in so far as it inserts Article 4(a)(6) in Regulation No 2868/88.
10 According to the Spanish Government, the contradiction between the wording of the contested provision and that of point 10(iv) of the annex to the Council Regulation is manifest. It points out that an implementing regulation adopted under an enabling provision in a basic regulation may not derogate from the provisions of that regulation.
11 The same contradiction may be observed, according to the Spanish Government, in relation to point II.9(e)(iv) of Annex I to the agreed minute to the Agreement. However, since Article 228(7) of the EC Treaty provides that agreements concluded by the Community are binding on the institutions, it follows that the Commission cannot derogate unilaterally from the provisions of such an agreement. Furthermore, the Court has already held that the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must be interpreted in a manner consistent with those agreements (C-61/94 Commission v Germany [1996] ECR I-3989). Similarly, in accordance with the pacta sunt servanda maxim, embodied in Article 26 of the Vienna Convention on the Law of Treaties, every international treaty in force is binding upon the parties to it and must be performed by them in good faith.
12 The Commission disputes those assertions and contends that the action should be dismissed and that the Kingdom of Spain should be ordered to pay the costs.
13 The Commission's primary contention in its defence is that the action brought by the Kingdom of Spain is based on a misreading of the relevant provisions. The contested provision in Regulation No 2868/88, as amended, reproduces verbatim point 10(ii) of the annex to the Council Regulation and point II.9(e)(ii) of Annex I to the agreed minute of the Agreement.
14 According to the Commission, the only reason for the requirement under point 10(iv) of the annex to the Council Regulation and point II.9(e)(iv) of Annex I to the agreed minute of the Agreement that the consent of the contracting party of the diverted vessel be obtained is that both provisions contemplate a situation where there has been an apparent infringement in international waters. In such cases the flag State's consent is necessary because the question of protecting its prerogatives arises. By contrast, the contested provision relates solely to inspections carried out in a port, which cannot raise problems concerning the limits of the flag State's jurisdiction, because that State's own authorities supervise the conduct of the inspection and are therefore in a position to ensure that its prerogatives are respected by means of other procedures. Thus, there is no need for the flag State's consent.
15 The requirement concerning the flag State's consent, relied upon by the Kingdom of Spain, is also laid down in Article 4(b)(2) of Regulation No 2868/88, as amended.
16 The Commission also contends that, in any event, there can be no question of the Agreement having been breached since as from September 1995 it no longer applied. The last paragraph of the agreed minute of the Agreement states that `this agreed minute shall cease to apply on 31 December 1995 or when the measures described in this agreed minute are adopted by NAFO, if this is earlier'. The adoption of the measures at issue took place in September 1995 and was the subject of a NAFO recommendation. Thus the agreement became devoid of purpose as from that date and consequently cannot serve as the legal basis for the action brought by the Kingdom of Spain.
17 The Spanish Government's response to this is that the reference to Article 4(b) of the regulation at issue is misplaced, since that provision does not concern Community vessels, but those flying the flag of a non-Community contracting party, as is clear from the wording of Article 4(b)(1).
18 As for the applicability of the Agreement, the Spanish Government admits that the multilateral provisions were in fact adopted at NAFO's 17th annual conference in September 1995, but emphasises that they are identical to the provisions of the Agreement. In any event, the contested provision is incompatible with the international obligations flowing from the agreement concerning fisheries in the NAFO area. The plea alleging a contradiction between Regulation No 2868/88, as amended, and the Council Regulation
19 The first point to note is that, by virtue of Article 4 of Regulation No 1956/88, the Commission was empowered to adopt detailed rules for the implementation of the Council Regulation.
20 The Court has consistently held that an implementing regulation adopted on the basis of an enabling provision in the basic regulation may not derogate from the provisions of that regulation, to which it is subordinate (Case 38/70 Tradax [1971] ECR 145, paragraph 10).
21 That being so, it must be determined whether the contested provision in Regulation No 2868/88, as amended, which is the implementing regulation, is compatible with the Council Regulation, which is the basic regulation.
22 First, the Commission's argument that, in any event, Article 4(b)(2) of Regulation No 2868/88, as amended, introduced a requirement concerning the consent of the contracting party of the vessel must, as submitted by the Spanish Government, be rejected.
23 On that point it need merely be observed that, as is clear from Article 4(b)(1) of Regulation No 2868/88, as amended, Article 4(b)(2) concerns vessels flying the flag of States other than the Member States of the Community. It has no bearing, therefore, on the outcome of the present dispute and accordingly cannot serve as a basis for the Commission's argument.
24 Next, it is necessary to consider the Commission's argument that Article 4(a)(6) of Regulation No 2868/88, in the amended text of that regulation, is consistent with point 10(ii) of the annex to the Council Regulation and is not therefore ultra vires, even though that provision is silent with regard to the situation contemplated by point 10(iv) of the said annex.
25 The Commission rightly contends that the contested provision is drafted in terms almost identical to those of point 10(ii) of the annex to the Council Regulation. The latter envisages the situation where a vessel suspected of having infringed the NAFO rules undergoes a thorough inspection in a port of diversion and provides for the attendance in such circumstances of an inspector `from any other Contracting Party that wishes to participate' without there being any need to obtain the consent of the flag State. The contested provision, on the other hand, concerns specifically the situation where a thorough inspection is carried out in a port, which is subject to provisions similar to those of point 10(ii) of the annex to the Council Regulation.
26 Point 10(iv) of the annex to the Council Regulation, however, concerns the specific situation in which another contracting party wishes to have an inspector board a vessel which is under orders, pursuant to point 10(ii), to proceed to a diversion port for a thorough inspection.
27 Admittedly, the wording of point 10(iv) is not entirely devoid of ambiguity in that it fails to make clear that the required consent of the State of the vessel does not relate to each one of the three situations envisaged, that is to say, where the inspector boards the vessel, where he remains on board as the vessel proceeds to port and where he is present during the thorough inspection of the vessel in port. The fact remains, however, that if point 10(iv) is to be construed consistently with point 10(ii) of the annex to the Council Regulation, it must be read as referring to the inspection of the vessel in the port solely in order to emphasise that the inspector of a contracting party other than the flag State has the right, once aboard, to remain on the vessel until the inspection in the port has been completed.
28 Since the question of the legality of Regulation No 2868/88, as amended, falls to be determined only in relation to those provisions of the annex to the Council Regulation which govern the same situation - point 10(ii) - it follows from all the foregoing considerations that that regulation has not been infringed. The plea alleging a contradiction between Regulation No 2868/88, as amended, and point II.9(e)(iv) of Annex I to the agreed minute of the Agreement
29 The Kingdom of Spain submits that Regulation No 2868/88, as amended, conflicts with the Agreement and in particular with the provisions of point II.9(e)(iv) of Annex I to the agreed minute thereof. According to the Spanish Government, a NAFO inspector of a contracting party other than the State of the vessel cannot participate in the inspection carried out at the port unless the consent of the flag State is obtained. If consent is withheld, the inspector cannot participate in the thorough inspection, the various stages of which are conducted in the port of diversion.
30 It need merely be stated, in response to that submission, that the provisions of point II.9(e)(iv) of Annex I to the agreed minute of the Agreement are framed in terms virtually identical to those of point 10(iv) of the annex to the Council Regulation. Accordingly, the second plea in law must perforce be rejected on the same grounds as those which led the Court to reject the first plea in law put forward by the Spanish Government, without there being any need to consider the applicability of the Agreement.
31 It follows from all the foregoing that the action must be dismissed.