Parties
Grounds
Decision on costs
Operative part
Parties
In Cases T-54/00 and T-73/00,
Federación de Cofradías de Pescadores de Guipúzcoa, established in San Sebastián, Spain,
Federación de Cofradías de Pescadores de Vizcaya, established in Bilbao, Spain,
Federación de Cofradías de Pescadores de Cantabria, established in Santander, Spain,
and
the 59 applicants whose names are listed in the annex to this order,
represented by J.R. García-Gallardo Gil-Fournier and D. Domínguez Pérez, lawyers,
applicants in Case T-54/00,
Nicólas Martínez Rey y otro CB, established in Ares, La Coruña, Spain,
Porvenir Numero Cuatro, SL, established in Riviera, La Coruña, Spain
Hermanos Deza, SL, established in Sanxenxo, Pontevedra, Spain,
represented by J.R. García-Gallardo Gil-Fournier and D. Domínguez Pérez, lawyers,
applicants in Case T-73/00,
applicants,
v
Council of the European Union, represented by J. Carbery, I. Díez Parra and M. Sims-Robertson, acting as Agents,
defendant,
supported by
Commission of the European Communities, represented by T. van Rijn and J. Guerra Fernández, acting as Agents, with an address for service in Luxembourg,
intervener,
APPLICATION, in both cases, for a declaration that the ninth heading of Annex I D to Council Regulation (EC) No 2742/1999 of 17 December 1999, fixing for 2000 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required, and amending Regulation (EC) No 66/98 (OJ 1999 L 341, p. 1) is void and, second, a declaration that point 1.1, (i) of Annex IV to Council Regulation (EC) No 685/95 of 27 March 1995 on the management of the fishing effort relating to certain Community fishing areas and resources (OJ 1995 L 71, p. 5) is void,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of: J. Azizi, President, K. Lenaerts and M. Jaeger, Judges,
Registrar: H. Jung,
makes the following
Order
Grounds
Legal context
1 Article 2(1) of Council Regulation (EC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1) is worded as follows:
As concerns exploitation activities, the general objectives of the common fisheries policy shall be to protect and conserve available and accessible living marine aquatic resources, and to provide for rational and responsible exploitation on a sustainable basis, in appropriate economic and social conditions for the sector, taking account of its implications for the marine eco-system, and in particular taking account of the needs of both producers and consumers.
To that end, a Community system for the management of exploitation activities is established which must enable a balance to be achieved, on a permanent basis, between resources and exploitation in the various fishing areas.
2 In this connection, Article 4(1) of Regulation No 3760/92 provides as follows:
In order to ensure the rational and responsible exploitation of resources on a sustainable basis, the Council, acting, except where otherwise provided, in accordance with the procedure laid down in Article 43 of the Treaty, shall establish Community measures laying down the conditions of access to waters and resources and of the pursuit of exploitation activities. These measures shall be drawn up in the light of the available biological, socio-economic and technical analyses and, in particular, of the reports drawn up by the Committee provided for in Article 16.
3 In addition, it is apparent from Article 8(4)(i) and (ii) of the same regulation that the Council must, acting by qualified majority on a proposal from the Commission, determine for each fishery or group of fisheries, on a case-by-case basis, the total allowable catch (TAC) and/or the total allowable fishing effort, where appropriate on a multiannual basis, and distribute the fishing opportunities between Member States in such a way as to assure each Member State relative stability of fishing activities for each of the stocks concerned. However, following a request from the Member States directly concerned, the Council may take account of the development of mini-quotas and regular quota swaps since 1983, with due regard to the overall balance of shares.
4 Finally, Article 9(1) of Regulation No 3760/92 provides that, after notifying the Commission, the Member States may exchange all or part of the fishing availabilities allocated to them.
5 On the basis of Articles 4 and 8(4) of Regulation No 3760/92, the TAC of certain fish stocks for the year 2000 was fixed by Council Regulation (EC) No 2742/1999 of 17 December 1999, fixing for 2000 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required, and amending Regulation (EC) No 66/98 (OJ 1999 L 341, p. 1). With regard to anchovy, that regulation provides, for the statistical zone identified and defined by the International Council for the Exploration of the Sea (ICES) as being zone VIII, a TAC of 16 000 tonnes, of which 14 400 tonnes was allocated to Spain and 1 600 tonnes to France (eighth heading of Annex I D to the regulation). For ICES zones IX and X and area 34.1.1 defined by the CECAF (CECAF area 34.1.1) the regulation fixed a TAC of 10 000 tonnes, of which 4 780 tonnes were allocated to Spain and 5 220 tonnes to Portugal (ninth heading of Annex I D to the regulation).
6 The TAC for anchovy fixed in this way for zone VIII is considerably less than that approved for the same zone in previous years because of scientific reports indicating that the spawning-stock biomass could reach a dangerously low level in 2000. However, as a result of better scientific estimates of the biomass level which were made at the beginning of 2000, the Council decided to change the TAC for anchovy for that zone by fixing it at the same level as in previous years, namely 33 000 tonnes, of which 29 700 tonnes were allocated to Spain and 3 300 tonnes to France [Council Regulation (EC) No 1446/2000 of 16 June 2000 amending Regulation No 2742/1999 (OJ 2000 L 163, p. 3)].
7 In addition to the TAC allocated to France for ICES zone VIII, since 1995 Portugal has transferred to France an annual quota of anchovy.
8 Each year France and Portugal have, on the basis of Article 9(1) of Regulation No 3760/92, exchanged the fishing quotas allocated to them. The nature and the conditions of those exchanges are laid down in paragraph 1.1 of Annex IV to Council Regulation (EC) No 685/95 of 27 March 1995 on the management of the fishing effort relating to certain Community fishing areas and resources (OJ 1995 L 71, p. 5), which provides as follows:
The exchanges between France and Portugal are tacitly renewable for the period 1995 to 2002, subject to the possibility of annual amendment of the conditions thereof by each Member State at the time of the annual fixing of TACs and quotas.
Exchanges concern the following TACs:
(i) a common TAC for anchovy being fixed for ICES areas VIII and IX, 80% of Portugal's fishing possibilities will be transferred every year to France. Quantities must be fished exclusively in waters under the sovereignty or jurisdiction of France [...]
9 On the basis of those exchanges, the Council, by means of the ninth heading of Annex I D to Regulation No 2742/1999, in particular allowed 3 000 tonnes of the anchovy quota of 5 220 tonnes allocated to Portugal for the year 2000 for ICES zones IX and X and CECAF area 34.1.1 (see paragraph 5 above) to be fished in the waters of zone VIII, which are under the sovereignty or within the jurisdiction of the French Republic (the contested provision).
Procedure in Case T-54/00
10 It was in those circumstances that, by application lodged at the Court Registry on 11 March 2000, 59 owners of vessels (natural persons, jointly-owned entities and companies) in the Spanish provinces of Asturias, La Coruña, Pontevedra and Lugo, and three federations of associations of owners of vessels of the provinces of Guipúzcoa, Cantabria and Vizcaya brought the present action.
11 By separate document lodged at the Court Registry on 14 March 2000, the applicants also applied for suspension of the operation of the contested provision. That application was dismissed by order of the President of the Court of First Instance of 10 July 2000 in Case T-54/00 R Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2000] ECR II-2875, which was upheld on appeal by order of the President of the Court of Justice of 12 October 2000 in Case C-300/00 P(R) Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2000] ECR I-8797.
12 By separate document lodged at the Court Registry on 17 May 2000, the Council raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure. The applicants lodged their observations on that objection on 5 July 2000.
13 By order of 27 June 2000, the Commission was granted leave to intervene in support of the form of order sought by the Council. The Commission lodged its statement in intervention on 4 October 2000. The Council and the applicants submitted their observations on that statement on 20 December 2000 and 8 January 2001 respectively.
Procedure in Case T-73/00
14 By application lodged at the Court Registry on 27 March 2000, three owners of vessels of the Spanish provinces of La Coruña and Pontevedra brought an action in the same terms as that in Case T-54/00.
15 By separate document lodged at the Court Registry on 26 May 2000, the Council raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure. The applicants lodged their observations on that objection on 5 July 2000.
16 By letter of 29 June 2000, the applicants requested the Court to join this action with that in Case T-54/00 as the subject-matter was the same. By letter of 31 July 2000, the Council informed the Court that it objected to the joinder of the actions.
17 By order of 6 November 2000, the Commission was granted leave to intervene in support of the form of order sought by the Council. The Commission lodged its statement in intervention on 14 December 2000. The Council and the applicants submitted their observations on that statement on 9 February and 5 March 2001 respectively.
Forms of order sought by the parties in Cases T-54/00 and T-73/00
18 The applicants claim that the Court should:
- declare the applications admissible;
- annul the contested provision;
- rule that paragraph 1.1, (i) of Annex IV to Regulation No 685/95 is illegal;
- order the Council and the Commission to pay the costs.
19 The Council and the Commission contend that the Court should:
- declare the applications inadmissible;
- order the applicants to pay the costs.
Joinder
20 As the applications in Cases T-54/00 and T-73/00 are connected, they should be joined for the purposes of this order.
Admissibility
21 Under Article 111 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order, give a decision on the action without taking further steps in the proceedings. In the present case, the Court considers that it has sufficient information from the documents in the file and, pursuant to Article 111, it will give a decision without taking further steps in the proceedings.
22 It shall be observed that, in both these cases, the Council has argued that the applications are inadmissible because the applicants have no standing to bring proceedings. However, in Case T-73/00, the Council also complained that the applicants' identity was not clearly stated.
23 The Court will examine the second complaint first and will then go on to consider the argument that the applicants have no standing to bring proceedings.
The objection that the identity of the applicants in Case T-73/00 is not clearly stated
The parties' arguments
24 The Council contends that the application in Case T-73/00 must be declared inadmissible in so far as it does not comply with the formal requirements of the first paragraph of Article 19 of the EC Statute of the Court of Justice and Article 44(1) of the Rules of Procedure of the Court of First Instance with regard to the identification of the applicants. According to the Council, it is not possible to ascertain exactly the applicants' identity because, according to page 1 of the application, the action has been brought by the owners of vessels (natural persons, jointly-owned entities and companies) of the provinces of La Coruña and Pontevedra, which implies that all the owners of vessels in those two provinces are involved, but the annex shows the names of only three fishing undertakings.
25 On this point the Council considers that reference should be made to settled case-law according to which an application must be sufficiently clear and precise to enable the defendant to prepare his defence and the Community Court to give judgment, if appropriate, without other information in support (see order of the Court of First Instance of 29 November 1993 in Case T-56/92 Koelman v Commission [1993] ECR II-1267, paragraph 21). According to the Council, the case-law applies also to the applicants' identification because, in the absence of such identification, the defendant cannot verify the applicants' standing in the light of the requirements of the fourth paragraph of Article 230 EC.
26 According to the applicants, the problem of identification to which the Council refers is explained by the fact that, in principle, they ought to have been parties to the action in Case T-54/00, but as they were unable to collect the necessary certified statements in good time they were compelled to bring the present action. With regard to their arguments in support of this application, they refer to their pleadings in Case T-54/00.
Findings of the Court
27 According to the first paragraph of Article 19 of the Statute of the Court of Justice which, by virtue of Article 46 of the same Statute, applies to the procedure before the Court of First Instance, and Article 44(1)(a) of the Rules of Procedure of the Court of First Instance, an application must state the name and address of the applicant. It is necessary to ascertain whether this formal requirement has been met in the present case.
28 The first page of the application shows that the action was brought by the owners of vessels (natural persons, jointly-owned entities and companies) of the provinces of La Coruña and Pontevedra, whose names are listed in Annex I. Annex I consists of copies of official documents relating to three owners, namely Nicólas Martínez Rey y otro CB, Porvenir Numero Cuatro, SL and Hermanos Deza, SL. In accordance with Article 44(5) of the Rules of Procedure, those documents prove the existence in law of the owners of the vessels and that the authority granted to their lawyers was properly conferred for the purpose of defending their interests in this action. The documents also show the applicants' names and addresses.
29 Therefore, although it is regrettable that the applicants' exact identity was not clearly stated on the first page of the application, it is nevertheless sufficiently clear from that document.
30 Consequently this objection must be dismissed.
The objection that the applicants have no standing to bring proceedings
The parties' arguments
31 The Council contends that the actions are inadmissible since the contested provision is a legislative measure of general application within the meaning of Article 249 EC as it applies to objectively determined situations and produces legal effects with regard to certain categories of persons envisaged in a general and abstract manner. According to the fourth paragraph of Article 230 EC, natural and legal persons may not in principle institute proceedings for the annulment of such a measure.
32 The Council further contends, in the alternative, that the contested provision is not of direct and individual concern to the applicants.
33 The Council states that, contrary to the applicants' arguments, the applicants do not belong to a closed class of economic operators since, first, they do not necessarily encompass all the Spanish fishermen who may fish in ICES zone VIII and, second, the contested provision affects mainly anchovy fishermen established in France and Portugal.
34 The Council adds that, to be entitled to fish for part of the anchovy quota allocated to France, fishermen and fishing partnerships must first obtain a licence issued by the French authorities. According to the Council, the need for assistance from the national authorities means that the contested provision is not of direct concern to the applicants.
35 Finally, the Council points out that, according to settled case-law, actions instituted by associations are admissible in three kinds of situation, namely where a legal provision grants them powers of a procedural nature, where proceedings may be brought by their members, or where they can prove that their own interests as an association are affected. The Council contends that the associations in the present case do not find themselves in any of those situations, so that the action is also inadmissible so far as they are concerned.
36 The Commission supports the Council's objection of inadmissibility.
37 The applicants begin by claiming that, in so far as they cannot challenge the legality of the contested provision in the Spanish courts as there is no national measure implementing it, it would be contrary to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) to dismiss the present actions as inadmissible on the ground that the applicants have no standing to bring proceedings. According to the applicants, it is incumbent on the Court to interpret in a flexible manner the Treaty provisions concerning the right of action of individuals.
38 Next, while acknowledging that the contested provision is of general application, the applicants contend that it is nevertheless of direct and individual concern to them.
39 First, to show that they are individually concerned, they submit that, under Article 161(1)(f) of the Act concerning the Conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the Adjustments to the Treaties (OJ 1985 L 302, p. 23, the Act of Accession), which allocated to Spain 90% and to Portugal 10% of the TAC of anchovy in ICES zone VIII, and Articles 2(1) and 4(1) of Regulation No 3760/92, the Community institutions had an obligation to take account of the applicants' specific situation when the contested provision was adopted (see judgment in Case C-390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I-769, paragraphs 25 to 30).
40 On this point, the applicants contend that the present case can be distinguished from other fishing cases where the Court found that, in view of the very general nature of Articles 2(1) and 4(1) of Regulation No 3760/92, they were not such as to show the existence of a specific obligation to take account of the situation of certain operators (see order in Case T-194/95 Area Cova and Others v Council [1999] ECR II-2271, paragraph 44). The applicants contend that, in the present cases, the persons concerned are identified much more clearly because the recitals in Regulation No 1446/2000 show that the Council's obligation to take account, in accordance with the above provisions, of the interests of operators applies to each zone individually, so that, with regard to ICES zone VIII, the Council was entitled to take account only of the interests of Spanish and French operators only. Furthermore, under Article 161(1)(f) of the Act of Accession, the Council had an obligation to take account of the specific situation of Spanish operators as having the right to fish for 90% of the TAC of anchovy in ICES zone VIII.
41 Second, the applicants contend that they are individually concerned by the contested provision in so far as, when it was adopted, the Council knew or ought to have known with a sufficient degree of certainty the number of vessels which could fish in the zone in question during 2000. According to the applicants, this number is the same as for previous years. The applicants also claim that the Council's adoption of Regulation No 1446/2000, which approves a TAC for anchovy at the same level as that fixed for previous years for ICES zone VIII shows that the Council knew the number of vessels fishing in that zone.
42 Third, the applicants submit that they are differentiated from all other persons by the contested provision because they, unlike the French owners authorised to fish in zone VIII, suffer considerable damage, both economic and environmental, by reason of the transfer of the anchovy quota. That conclusion is all the more compelling in that the Spanish owners are more dependent than their French counterparts on anchovy fishing in zone VIII and it would be difficult for them to reconvert.
43 Fourth, the applicants contend that they form a closed class of economic operators who are particularly affected by the contested provision. They claim that there are in the present case two clearly differentiated groups, namely those who benefit from the quota transfer and those who do not. The second group consists of Spanish owners only.
44 The applicants accept that, in this case, the class is not, strictly speaking, absolutely closed in so far as licences are issued every quarter. However, they contend that the class is de facto closed because the arrival of new fishermen authorised to fish for anchovy in zone VIII is virtually impossible by reason of the administrative difficulties which they have to confront. That is borne out by the fact that the lists of vessels with licences to fish for anchovy in zone VIII remain almost the same and do not vary from one year to another, save as a result of vessel substitution.
45 The applicants add that, as they had a period of two months in which to bring an action for the annulment of the contested provision, they could not wait until all the licences for the four quarters of the year 2000 had been issued to prove, on the basis of those lists, the truth of their claims that Spanish anchovy fishermen were a closed class. However, the applicants point out that, when they lodged their observations on the Commission's statement in intervention, the lists of licence holders for anchovy fishing for 2000 had been closed and the lists showed that the number of licence-holders remained the same. Therefore almost all the applicants had applied for and obtained a licence to fish for anchovy in 2000 with the exception, first, of cases where fishing vessels had been replaced by new ones and, second, where owners had decided to fish for other species.
46 In addition, the applicants contend that they are directly concerned by the contested provision because it causes them direct damage economically and environmentally and this direct link cannot be broken by any national measure as they cannot obtain licences from the French authorities to fish for anchovy.
47 Finally, the applicants contends that the three federations of owners' associations are also entitled bring an action because they, by subrogation, defend the interests of the vessel owners who are individually and directly concerned by the contested provision.
Findings of the Court
48 These actions have been brought by 62 owners of vessels and three federations representing the collective interests of associations of vessel owners. The Court will examine the admissibility of the actions in relation to each of the two groups of applicants.
- Admissibility of the action brought by the vessel owners
49 The applicants do not deny that the contested provision is a decision addressed to Member States and that so far as they are concerned it has general application.
50 However, it is necessary to establish whether, notwithstanding the general application of the contested provision, the applicants may nevertheless be regarded as directly and individually concerned by it. The fact that a measure is of general application does not prevent it from being of direct and individual concern to certain natural or legal persons (see judgments in Case C-309/89 Codorniu v Council [1994] ECR I-1853, paragraph 19; Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission [1995] ECR II-2305, paragraph 66, and Joined Cases T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-2941, paragraph 50).
51 With regard, first, to the question whether the applicants are individually concerned by the contested provision, it must be observed that, for a natural or legal person to be regarded as individually concerned by a provision of general application, it must affect that person by reason of certain attributes which are peculiar to that person or by reason of circumstances in which that person is differentiated from all other persons (see judgment in Case 25/62 Plaumann v Commission [1963] ECR 95, 107, and orders of the Court of First Instance in Case T-122/96 Federolio v Commission [1997] ECR II-1559, paragraph 59, and in Case T-120/98 Alce v Commission [1999] ECR II-1395, paragraph 19).
52 On that point, the applicants submit, first, that they are individually concerned by the contested provision since, when it was adopted, the Council had an obligation, under Articles 2(1) and 4(1) of Regulation No 3760/92 and Article 161(1)(f) of the Act of Accession, to take account of their particular situation.
53 It is true that the Court of Justice and the Court of First Instance have held that actions for the annulment of measures having general effect were admissible in so far as there was a provision of law of a higher order requiring the body responsible for it to take into account the applicant's particular circumstances (see judgments in Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraphs 21 to 31; Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 11; Joined Cases T-480/93 and T-483/93, cited in paragraph 50 above, paragraphs 67 to 78, and Case T-135/96 UEAPME v Council [1998] ECR II-2335, paragraph 90).
54 However, it must be observed that Article 161(1)(f) of the Act of Accession, which allocated to Spain 90% of the TAC of anchovy in ICES zone VIII, the remaining 10% being allocated to France, only has the object of apportioning the anchovy quota in that zone. That provision makes no reference to the situation of anchovy fishermen in the two countries who may fish in that zone nor, a fortiori, to any obligation on the Council's part to take account of the particular situation of those fishermen when it authorises a transfer of the anchovy quota from a contiguous zone to that zone.
55 With regard to Articles 2(1) and 4(1) of Regulation No 3760/92, they only have the object of establishing the framework within which the Council may, acting on a proposal from the Commission, adopt Community measures laying down the conditions of access to zones and resources and the conditions for pursuing exploitation activities. Therefore they apply to economic operators active in the fisheries sector only in a general way (see, to that effect, order in Case C-300/00 P(R), cited in paragraph 11 above, paragraph 38; see also, in relation to Article 2(1) of Regulation No 3760/92, order in Case T-194/95, cited in paragraph 40 above, paragraph 44). Under no circumstances can Articles 2(1) and 4(1) be interpreted as requiring the Council to take account of the applicants' specific situation.
56 That conclusion is not invalidated by the fact that, as the applicants contend, it follows from the fourth recital in the preamble to Regulation No 1446/2000 that the Council must apply the criteria set out in Articles 2(1) and 4(1) of Regulation No 3760/92 for each fishing zone in particular. Such an obligation, assuming that it is shown to exist, would not be limited to taking into account the situation only of Spanish fishermen who may fish for anchovy in zone VIII, but would apply to the situation of all economic operators who are active in that zone in the fishing industry. Furthermore, it must be observed that, since Regulation No 1446/2000 was adopted after the contested provision, that obligation, assuming that it is shown to exist, was not applicable at the time when the said regulation was adopted.
57 Consequently this first argument must be rejected.
58 Second, the applicants contend that they are individually concerned by the contested provision because the Council knew or ought to have known their identity at the time when that provision was adopted.
59 That contention has no basis in fact. At the time when the contested provision was adopted the Council had no particular information concerning vessels flying the Spanish flag and holding a licence to fish for anchovy in the first quarter of 2000 nor, a fortiori, concerning vessels which might hold a licence for the following quarters of that year because licences for the later period had not been granted at that date.
60 In that connection, it is irrelevant that the number of Spanish fishermen authorised to fish for anchovy in zone VIII had not changed in previous years. As the case-law shows, the possibility of determining, more or less precisely, the number of persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them, as long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question (see order of the Court of Justice in Case C-131/92 Arnaud and Others v Council [1993] ECR I-2573, paragraph 13, and judgments in Case C-213/91 Abertal and Others v Commission [1993] ECR I-3177, paragraph 22, and Case T-138/98 ACAV and Others v Council [2000] ECR II-341, paragraph 64). In the present case, the applicants are affected by the contested provision by virtue of a situation objectively determined by that provision, namely as operators of vessels flying the flag of a Member State which may be allocated rights to fish for anchovy in ICES zone VIII.
61 Similarly, it is necessary to reject the applicants' assertion that the fact that, by adopting Regulation No 1446/2000, the Council approved a TAC which was at the same level as in previous years, indicates that the Council was aware of the number of vessels which could fish for anchovy in zone VIII. A TAC is not fixed by the Council by reference to the number of vessels fishing in a specific zone but, in conformity with Article 8(4) of Regulation No 3760/92, on the basis of the management objectives and strategies laid down by the Council to ensure the rational and responsible exploitation of marine resources. Moreover, even assuming that that assertion were correct, it is irrelevant for the purpose of the present argument because it relates to all vessels which may fish in zone VIII, namely those flying the Spanish flag as well as those flying the French flag. Therefore it does not justify the conclusion that the Council was aware of the applicants' particular situation.
62 Consequently this argument must be rejected.
63 Third, the applicants claim that they are individually concerned by the contested provision because of the particular effect which it has on their situation from both the economic and the environmental viewpoint.
64 However, it must be observed that the fact that a measure of general application may have concrete effects which differ according to the individuals to whom it applies is not such as to differentiate them from all the other operators concerned, because that measure is applied by virtue of an objectively determined situation (see orders of the Court of Justice in Case C-409/96 P Sveriges Betodlares and Henrikson v Commission [1997] ECR I-7531, paragraph 37, and of the Court of First Instance of 8 December 1998 in Case T-39/98 Sadam Zuccherifici and Others v Council [1998] ECR II-4207, paragraph 22). As was pointed out in paragraph 60 above, that is not the case here.
65 Next, even assuming that the effects of the contested provision can be taken into account to determine whether it differentiates the applicants from all other economic operators, the applicants have adduced no evidence to establish the route of their assertions regarding the serious economic and environmental effects for Spanish anchovy fishermen arising from the adoption of the contested provision.
66 Moreover, it seems doubtful that Spanish anchovy fishermen alone are affected.
67 If, the applicants maintain, the selling prices of anchovy fall because of the additional catches by French fishermen, in all probability the latter would be affected by any such fall just as much as Spanish fishermen.
68 As regards the environmental damage referred to by the applicants, it must be observed that, if the quota transfer results in deterioration of the anchovy stock in zone VIII, the damage will affect all anchovy fishermen, including French fishermen operating in that zone.
69 Furthermore, it cannot be denied that the contested provision also has an adverse effect on the interests of Portuguese anchovy fishermen in so far as their fishing rights have been reduced by the adoption of that measure. The transfer of quotas from Portugal to France resulting from that provision means that the Portuguese fishermen lose the right to fish for the entire 5 220 tonnes of anchovy in ICES zones IX and X and CECAF area 34.1.1.
70 Consequently this third argument must be rejected.
71 Fourth, the applicants contend that, as Spanish fishermen do not benefit from the transfer of the anchovy quota for zone VIII, they belong to a closed class of economic operators who are specially affected by the contested provision.
72 However, it must be noted that the factual matters relied upon by the applicants cannot be regarded as factors which absolutely and definitively confine the application of the contested provision solely to Spanish owners who have already fished for anchovy in zone VIII.
73 Thus the existence of technical requirements and administrative formalities does not mean that vessel owners who had not yet engaged in the activity in question may not have contemplated doing so during the fishing year 2000 and are therefore affected by the contested provision (see, to that effect, in relation to a closed class of vessels authorised to fish for black halibut in sub-areas 2 and 3 of the North-West Atlantic Fisheries Organisation (NAFO), order in Area Cova and Others v Council, cited in paragraph 40 above, paragraph 29).
74 Similarly, the fact that, according to the lists of Spanish licence holders for anchovy fishing in ICES zone VIII, the number of fishermen was unchanged during the previous years does not prove the existence of a closed class of economic operators. The number of licences granted annually may vary in so far as certain fishermen who held a licence for fishing for anchovy in previous years might decide to fish for a different species in 2000, while other fishermen who, at the time when the contested provision was adopted, had not yet fished for anchovy in zone VIII might have considered doing so in that year.
75 Consequently this fourth argument must be rejected.
76 It follows from all the foregoing considerations that the contested provision cannot be held to be of individual concern to the 62 owners of vessels who have brought these actions.
- Admissibility of the action brought by the federations of vessel owners' associations
77 It must be noted that the federations of vessel owners' associations have merely contended that they should be regarded as having standing to bring proceedings in so far as the members of the associations which they represent have such right. They have not claimed that their own interests as associations were affected (see the judgments in Case C-313/90 CIRFS v Commission [1993] ECR I-1125, paragraphs 29 and 30; Case T-380/94 AIUFFASS and AKT v Commission [1996] ECR II-2169, paragraph 50, and Case T-55/99 CETM v Commission [2000] ECR II-3207, paragraph 23).
78 However, it must be observed that, according to settled case-law, an association formed for the protection of the collective interests of a category of persons cannot be considered to be individually concerned, for the purposes of the fourth paragraph of Article 230 EC, by a measure affecting the general interests of that category, and it is therefore not entitled to bring an action for annulment where its members could not do so individually (see judgments in Joined Cases 19/62 to 22/62 Fédération Nationale de la Boucherie en Gros et du Commerce en Gros des Viandes and Others v Council [1962] ECR 491, 499 and 500, and Case C-321/95 P Greenpeace Council and Others v Commission [1998] ECR I-1651, paragraphs 14 and 29). As has been found above, the vessel owners in question here cannot be held to be individually concerned by the contested provision.
79 It follows that the federations in the present case cannot be held to be individually concerned by the contested provision.
- Conclusion
80 In view of the foregoing, as the two groups of applicants have failed to satisfy one of the requirements for admissibility laid down by the fourth paragraph of Article 230 EC, it is unnecessary to consider whether they are directly concerned by the contested provision.
81 As the actions are inadmissible, it follows that the objection of illegality raised by the applicants in relation to paragraph 1.1,(i) of Annex IV to Regulation No 685/95 is also inadmissible.
82 It must be observed that the possibility provided for by Article 241 EC of invoking the inapplicability of a regulation or of a measure of general application, which constitutes the legal basis of the contested implementing measure, is not an independent right of action and may only be sought incidentally. In the absence of such an independent right of action, the applicants cannot invoke Article 241 EC (see judgments in Case 33/80 Albini v Council and Commission [1981] ECR 2141, paragraph 17; Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 36, and Case T-154/94 CSF and CSME v Commission [1996] ECR II-1377, paragraph 16).
83 Moreover, it is necessary to reject the applicants' argument that the Court's decision to dismiss their applications as inadmissible for lack of standing to bring proceedings is contrary to Article 6 of the ECHR in so far as, since the contested provision does not provide for the Member States to adopt implementing measures, the applicants have no remedy before the national courts in order to challenge the legality of such measures.
84 In its judgment in ACAV and Others v Council, cited in paragraph 60 above (paragraph 68), the Court found that such circumstances, even if proved, could not justify a change, by way of judicial interpretation, in the system of remedies and procedures laid down by the Treaty. In no case can such circumstances enable an action for annulment brought by a natural or legal person which does not satisfy the conditions laid down by the fourth paragraph of Article 230 EC to be declared admissible (see also orders in Case C-10/95 P Asocarne v Council [1995] ECR I-4149, paragraph 26, and in Case C-87/95 P CNPAAP v Council [1996] ECR I-2003, paragraph 38).
85 Moreover it does not appear that the applicants have no right of recourse whatever with regard to the consequences, if any, of the contested provision. The persons concerned may in any event, in so far as they consider themselves the victims of damage arising directly from that measure, challenge it in the context of proceedings for non-contractual liability under Articles 235 and 288 EC (see order in Sveriges Betodlares and Henrikson v Commission, cited in paragraph 64 above, paragraph 52).
86 The general principle of Community law that any person whose rights and freedoms are violated is entitled to an effective remedy, which is inspired by Article 13 of the ECHR, is therefore respected in the present case.
87 It follows from the whole of the foregoing considerations that the applications must be dismissed as manifestly inadmissible.
Decision on costs
Costs
88 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Furthermore, Article 87(4) provides that institutions which intervened in the proceedings are to bear their own costs. As the applicants have been unsuccessful and the Council has applied for costs, the applicants must be ordered to bear their own costs and pay those of the Council. The Commission will bear its own costs.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. The applications in Cases T-54/00 and Case T-73/00 are joined for the purposes of this order.
2. The applications are dismissed as manifestly inadmissible.
3. The applicants shall bear their own costs and pay those of the Council.
4. The Commission shall bear its own costs.
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