In Case T-177/01,
Jégo-Quéré et Cie SA, established at Lorient (France), represented by A. Creus Carreras, B. Uriarte Valiente and A. Agustinoy Guilayn, lawyers,
applicant,
v
Commission of the European Communities, represented by T. van Rijn and A. Bordes, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for annulment of Articles 3(d) and 5 of Commission Regulation (EC) No 1162/2001 of 14 June 2001 establishing measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d, e and associated conditions for the control of activities of fishing vessels (OJ 2001 L 159, p. 4),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
(First Chamber, Extended Composition),
composed of: B. Vesterdorf, President, K. Lenaerts, J. Azizi, N.J. Forwood and H. Legal, Judges,
Registrar: D. Christensen, Administrator,
having regard to the written procedure and further to the hearing on 16 April 2002,
gives the following
Judgment
Legal and factual background
1 Article 15 of Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture (OJ 1992 L 389, p. 1), as amended, empowers the Commission to take emergency measures when the conservation of fish stocks is threatened by serious and unexpected upheaval.
2 In December 2000 the Commission and the Council, having been alerted by the International Council for the Exploration of the Sea (ICES), noted the urgent requirement to establish a plan for the recovery of the stock of hake.
3 The immediate aim of Commission Regulation (EC) No 1162/2001 of 14 June 2001 establishing measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d, e and associated conditions for the control of activities of fishing vessels (OJ 2001 L 159, p. 4, hereinafter `the regulation'), which was adopted in consequence, is to reduce catches of juvenile hake. It applies to fishing vessels operating in the areas defined by it, and imposes on them minimum mesh sizes, varying according to the areas concerned, for the different net fishing techniques employed, irrespective of the type of fish which the vessel in question is seeking to catch. That provision does not apply to vessels of less than 12 metres in length which leave port for not more than 24 hours.
4 As to the relevant provisions in the present case (hereinafter `the contested provisions'), Article 3(d) of the regulation prohibits the use of `any demersal towed net to which a cod-end of mesh size less than 100 mm is attached by any means other than being sewn into that part of the net anterior to the cod-end'. Article 5(1) of the regulation defines the geographical areas in which the regulation is applicable and specifies, in subparagraph (2), in respect of all of those areas, the prohibitions concerning the use, immersion and deployment of towed nets according to their mesh size and the obligations regarding the lashing and stowing of such nets, as well as the prohibitions applicable in each of those areas concerning the use, immersion and deployment of fixed gear according to its mesh size and the obligations regarding the lashing and stowing of such gear. As regards towed nets, the prohibitions apply to mesh sizes of between 55 and 99 mm; as regards fixed gear, they apply, depending on the zone concerned, to mesh sizes of less than 100 or 120 mm.
5 Jégo-Quéré et Cie SA (hereinafter `Jégo-Quéré') is a fishing company established in France which operates on a regular basis in the waters south of Ireland, in ICES sub-area VII as referred to in Article 5(1)(a) of the regulation. It fishes mainly for whiting, which represents, on average, 67.3% of its catches. It owns four vessels over 30 metres in length and uses nets having a mesh of 80 mm.
Procedure
6 By application lodged at the Court Registry on 2 August 2001, Jégo-Quéré brought an action under the fourth paragraph of Article 230 EC for annulment of Articles 3(d) and 5 of the regulation.
7 By separate document lodged at the Court Registry on 30 October 2001, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the Court of First Instance. The applicant submitted its observations on that objection on 14 December 2001.
8 By decision of the Court of First Instance of 14 March 2002, the case was assigned to the First Chamber, Extended Composition.
9 Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber, Extended Composition) decided to open the oral procedure for the purposes of ruling on the objection of inadmissibility raised by the defendant.
10 The parties presented oral argument and their replies to the Court's oral questions at the hearing on 16 April 2002.
Forms of order sought
11 In its objection of inadmissibility, the defendant claims that the Court should:
- dismiss the action as inadmissible;
- order the applicant to pay the costs.
12 In its observations on the objection of inadmissibility, the applicant contends that the Court should:
- reserve its decision on that objection until judgment in the main proceedings or, in the alternative, declare the action admissible following the oral procedure;
- order the Commission to pay the costs.
Admissibility
Arguments of the parties
13 The Commission raises an objection of inadmissibility based on the argument that the regulation is not of individual concern to Jégo-Quéré within the meaning of the fourth paragraph of Article 230 EC and that it does not therefore have locus standi to bring an action for annulment of the contested provisions.
14 The Commission claims that the regulation is a measure of general application, particularly as regards the contested provisions, which do not allow of any derogation. In that regard, it refers to case-law establishing that provisions which apply to objectively determined situations and produce legal effects vis-à-vis classes of persons envisaged in a general and abstract manner are of a legislative nature, irrespective of the fact that they may be of individual concern to certain economic operators (Case T-472/93 Campo Ebro and Others v Council [1995] ECR II-421, paragraphs 31 and 32; Case T-138/98 ACAV and Others v Council [2000] ECR II-341, paragraph 60). The defendant adds that the derogations provided for by the regulation, which do not form the subject-matter of the present action, are likewise measures of general application and do not in any way constitute a `bundle of individual decisions' (within the meaning of the judgments of the Court of Justice in Cases 41/70 to 44/70 International Fruit Company and Others v Commission [1971] ECR 411, paragraph 21, and in Case C-354/87 Weddel v Commission [1990] ECR I-3847, paragraph 23).
15 The Commission asserts that Jégo-Quéré is not individually concerned by the contested provisions, since the general ban on the use of nets of less than a given mesh size applies to all operators fishing in the Celtic Sea, regardless of the type of fish which they are seeking to catch. It states that Article 5 of the regulation applies only to part of ICES area VII and that Article 6 permits, subject to controls, the use of nets having a mesh size of between 70 and 90 mm. In the defendant's view, the particular situation of the applicant is not therefore individually affected in any way by those measures, which cover a type of fishing in which it does not engage, have the same effect on operators fishing for species other than hake and leave unaffected by the enlargement of the mesh size part of the geographical scope of the regulation in respect of which no restrictions are applicable to fishing for whiting. The Commission states that the size of Jégo-Quéré's vessels and the fact that not all operators from the different Member States are affected in the same way by the regulation are factual matters which are irrelevant for the purposes of establishing whether the applicant is individually concerned.
16 The Commission further argues that, for the purposes of enacting the regulation, it was not bound by any higher-ranking rule of law, including Article 33 EC relating to the objectives of the common agricultural policy, to take the particular situation of the applicant into account, by contrast with the circumstances envisaged in paragraph 28 of the judgment of the Court of Justice in Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207.
17 In addition, the Commission takes the view that the inadmissibility results from the system of legal remedies established by the Treaty and that Jégo-Quéré is not denied access to the courts, inasmuch as it can still have recourse to the procedure in respect of non-contractual liability provided for by Article 235 EC and the second paragraph of Article 288 EC (order of the Court of First Instance of 19 September 2001 in Cases T-54/00 and T-73/00 Federación de Cofradías de Pescadores and Others v Council [2001] ECR II-0000, paragraph 85).
18 Jégo-Quéré claims to be the largest fishing company operating off the south of Ireland, in ICES area VII covered by the regulation, and the only one fishing on a regular basis for whiting in the Celtic Sea with vessels over 30 metres in length. It states that its catches of hake are negligible, whereas fishing for whiting forms a key element of its activities, and that the enlargement of the mesh sizes of nets prescribed by the contested provisions will lead to a significant decrease in its catches of small whiting, so as to penalise it, even outside the areas covered by the regulation where it also fishes, since the rules do not permit nets of both types of mesh sizes to be carried on board. It argues that the contested provisions, which it claims to be unlawful since they were adopted in breach of the principles of proportionality and equality and of the obligation to state reasons, have a significantly adverse effect on its business.
19 Jégo-Quéré maintains that the regulation, in addition to affecting the Member States differently, is not a measure of general application. According to the applicant, it comprises a series of decisions adapted to meet the specific circumstances of various fishing companies in the Member States and thus constitutes a `bundle of individual decisions' within the meaning of the judgments in Weddel v Commission and International Fruit Company and Others v Commission, cited in paragraph 14 above. Jégo-Quéré adds that the specific situations thus established do not reflect objective differences and are not justified by the aim pursued by the regulation, to protect stocks of hake.
20 Jégo-Quéré asserts that its situation was sufficiently differentiated and that the Commission was aware of this, having had its attention drawn to the impact which the measures envisaged were likely to have on the activities of French trawlers fishing for whiting in the waters to the south and west of Ireland. In addition, the applicant considers that the Commission was under an obligation to take into account the adverse consequences which the proposed rules would have on it, and that the Commission should have provided for special measures, as it did for operators fishing primarily for species other than whiting, by adopting provisions reflecting those specific cases.
21 Jégo-Quéré argues that a finding that its action for annulment is inadmissible would leave it without any remedy, since no act has been adopted at national level against which legal proceedings can be brought. Relying on Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), it requests the Court, in the light of that provision, to apply a broad interpretation to Article 230 EC.
Findings of the Court
22 The fourth paragraph of Article 230 EC provides that `[a]ny natural or legal person may ... institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former'.
23 Jégo-Quéré is seeking annulment of Articles 3(d) and 5 of the regulation. Those provisions require fishing vessels operating in certain defined areas to use nets of a minimum mesh size for the different techniques employed when fishing with nets. Contrary to the applicant's arguments, those provisions are addressed in abstract terms to undefined classes of persons and apply to objectively determined situations (see, in particular, the judgment of the Court of Justice in Case C-213/91 Abertal and Others v Commission [1993] ECR I-3177, paragraph 19, and the order of the Court of First Instance in Case T-183/94 Cantina cooperativa fra produttori vitivinicoli di Torre di Mosto and Others v Commission [1995] ECR II-1941, paragraph 51).
24 Consequently, the contested provisions are, by their nature, of general application.
25 It is, however, necessary to consider whether, notwithstanding their general scope, the contested provisions may nevertheless be regarded as being of direct and individual concern to the applicant. According to settled case-law, the fact that a provision is of general application does not prevent it from being of direct and individual concern to some of the economic operators whom it affects (judgments of the Court of Justice in Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501, paragraphs 13 and 14, Case C-309/89 Codorniu v Council [1994] ECR I-1853, paragraph 19, and Case C-451/98 Antillean Rice Mills v Council [2001] ECR I-8949, paragraph 46; judgment of the Court of First Instance of 6 December 2001 in Case T-43/98 Emesa Sugar v Council [2001] ECR II-0000, paragraph 47).
26 It must be concluded that the criterion of direct concern is fulfilled in the present case. For a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (Case C-386/96 P Dreyfus v Commission [1998] I-2309, paragraph 43, and the case-law cited therein, and Joined Cases T-198/95, T-171/96, T-230/97, T-174/98 and T-255/99 Comafrica and Dole Fresh Fruit Europe v Commission [2001] ECR II-1975, paragraph 96). As it is, in order to produce their effects vis-à-vis the applicant, the contested provisions do not require the adoption of any additional measures, at either Community or national level.
27 Next, as regards the question whether the applicant is individually concerned within the meaning of the fourth paragraph of Article 230 EC, it should be recalled that, according to settled-case law dating back to the judgment of the Court of Justice in Case 25/62 Plaumann v Commission [1963] ECR 95, 107, for natural and legal persons to be regarded as individually concerned by a measure not addressed to them, it must affect their position by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee.
28 It is therefore necessary to consider whether, in the light of that case-law, the applicant may be regarded as individually concerned by the contested provisions.
29 The applicant states, first of all, that it is the only operator fishing for whiting in the waters south of Ireland with vessels over 30 metres in length, and that the application of the contested provisions has greatly reduced its catches.
30 However, that fact is not such as to differentiate the applicant within the meaning of the case-law referred to in paragraph 27 above, since the contested provisions are of concern to it only in its objective capacity as an entity which fishes for whiting using a certain fishing technique in a specific area, in the same way as any other economic operator actually or potentially in the same situation (see, to that effect, paragraph 20 of the judgment in Abertal and Others, cited in paragraph 23 above, and paragraph 65 of the judgment in ACAV and Others, cited in paragraph 14 above).
31 Next, the applicant claims that it is apparent from Article 33 EC that the Commission was legally bound to consider its particular position before adopting the contested provisions.
32 The fact that, by virtue of specific provisions, the Commission is under a duty to take account of the consequences for the situation of certain individuals of a measure which it envisages adopting may be such as to distinguish those persons individually (paragraphs 21 and 28 of the judgment in Piraiki-Patraiki, cited in paragraph 16 above; Case C-152/99 Sofrimport v Commission [1990] ECR I-2477, paragraph 11; Case C-390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I-769, paragraphs 25 to 30; Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission [1995] ECR II-2305, paragraph 67; and Case T-47/00 Rica Foods v Commission [2002] ECR II-0000, paragraph 41).
33 It must however be observed that Article 33 EC, which sets out the objectives of the common agricultural policy and the principles on which it is based, does not impose on the Commission any obligation, when adopting measures falling within that sphere, to take account of the particular situation of individual undertakings such as the applicant.
34 The applicant further refers to meetings which took place between it and the Commission during the course of the procedure leading up to the adoption of the regulation.
35 However, the fact that a person is involved in some way or other in the procedure leading to the adoption of a Community measure is capable of distinguishing that person individually in relation to the measure in question only if the applicable Community legislation grants him certain procedural guarantees (paragraph 55 of the judgment in Rica Foods v Commission, cited in paragraph 32 above).
36 In the present case, no provision of Community legislation required the Commission, for the purposes of adopting the regulation, to follow a procedure during which the applicant would have been entitled to assert any rights, including the right to be heard (see, to that effect, Joined Cases T-38/99 to T-50/99 Sociedade Agrícola dos Arinhos and Others v Commission [2001] ECR II-585, paragraph 48).
37 Moreover, the applicant has produced no evidence to show that the contested provisions affect it by reason of a special situation of the type identified by the Court of Justice in the cases culminating in the judgments cited in paragraph 25 above, namely Extramet Industrie v Council, paragraph 17, and Codorniu v Council, paragraphs 21 and 22.
38 Consequently, it follows that the applicant cannot be regarded as individually concerned within the meaning of the fourth paragraph of Article 230 EC, on the basis of the criteria hitherto established by Community case-law.
39 However, the applicant asserts that, were its action to be dismissed as inadmissible, it would be denied any legal remedy enabling it to challenge the legality of the contested provisions. Since the regulation does not provide for the adoption of any implementing measures by the Member States, the applicant maintains that, in the present case, it would have no right of action before the national courts.
40 The Commission, on the other hand, takes the view that the applicant is not denied access to the courts, since it can bring an action for non-contractual liability pursuant to Article 235 EC and the second paragraph of Article 288 EC.
41 In that regard, it should be borne in mind that the Court of Justice itself has confirmed that access to the courts is one of the essential elements of a community based on the rule of law and is guaranteed in the legal order based on the EC Treaty, inasmuch as the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of acts of the institutions (Case 294/83 Les Verts v European Parliament [1986] ECR 1339, paragraph 23). The Court of Justice bases the right to an effective remedy before a court of competent jurisdiction on the constitutional traditions common to the Member States and on Articles 6 and 13 of the ECHR (Case 222/84 Johnston [1986] ECR 1651, paragraph 18).
42 In addition, the right to an effective remedy for everyone whose rights and freedoms guaranteed by the law of the Union are violated has been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1).
43 It is therefore necessary to consider whether, in a case such as this, where an individual applicant is contesting the lawfulness of provisions of general application directly affecting its legal situation, the inadmissibility of the action for annulment would deprive the applicant of the right to an effective remedy.
44 In that regard, it should be recalled that, apart from an action for annulment, there exist two other procedural routes by which an individual may be able to bring a case before the Community judicature - which alone have jurisdiction for this purpose - in order to obtain a ruling that a Community measure is unlawful, namely proceedings before a national court giving rise to a reference to the Court of Justice for a preliminary ruling under Article 234 EC and an action based on the non-contractual liability of the Community, as provided for in Article 235 EC and the second paragraph of Article 288 EC.
45 However, as regards proceedings before a national court giving rise to a reference to the Court of Justice for a preliminary ruling under Article 234 EC, it should be noted that, in a case such as the present, there are no acts of implementation capable of forming the basis of an action before national courts. The fact that an individual affected by a Community measure may be able to bring its validity before the national courts by violating the rules it lays down and then asserting their illegality in subsequent judicial proceedings brought against him does not constitute an adequate means of judicial protection. Individuals cannot be required to breach the law in order to gain access to justice (see point 43 of the Opinion of Advocate General Jacobs delivered on 21 March 2002 in Case C-50/00 P Unión de Pequeños Agricultores v Council, not yet published in the European Court Reports).
46 The procedural route of an action for damages based on the non-contractual liability of the Community does not, in a case such as the present, provide a solution that satisfactorily protects the interests of the individual affected. Such an action cannot result in the removal from the Community legal order of a measure which is nevertheless necessarily held to be illegal. Given that it presupposes that damage has been directly occasioned by the application of the measure in issue, such an action is subject to criteria of admissibility and substance which are different from those governing actions for annulment, and does not therefore place the Community judicature in a position whereby it can carry out the comprehensive judicial review which it is its task to perform. In particular, where a measure of general application, such as the provisions contested in the present case, is challenged in the context of such an action, the review carried out by the Community judicature does not cover all the factors which may affect the legality of that measure, being limited instead to the censuring of sufficiently serious infringements of rules of law intended to confer rights on individuals (see Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraphs 41 to 43; Case T-155/99 Dieckmann & Hansen v Commission [2001] ECR II-0000, paragraphs 42 and 43; see also, as regards an insufficiently serious infringement, Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061, paragraphs 18 and 19, and, for a case in which the rule invoked was not intended to confer rights on individuals, paragraph 43 of the judgment of 6 December 2001 in Case T-196/99 Area Cova and Others v Council and Commission [2001] ECR II-0000).
47 On the basis of the foregoing, the inevitable conclusion must be that the procedures provided for in, on the one hand, Article 234 EC and, on the other hand, Article 235 EC and the second paragraph of Article 288 EC can no longer be regarded, in the light of Articles 6 and 13 of the ECHR and of Article 47 of the Charter of Fundamental Rights, as guaranteeing persons the right to an effective remedy enabling them to contest the legality of Community measures of general application which directly affect their legal situation.
48 It is true that such a circumstance cannot constitute authority for changing the system of remedies and procedures established by the Treaty, which is designed to give the Community judicature the power to review the legality of acts of the institutions. In no case can such a circumstance allow 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 the 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 and Others v Council [2000] ECR I-8797, paragraph 37).
49 However, as Advocate General Jacobs stated in point 59 of his Opinion in Unión de Pequeños Agricultores v Council (cited in paragraph 45 above), there is no compelling reason to read into the notion of individual concern, within the meaning of the fourth paragraph of Article 230 EC, a requirement that an individual applicant seeking to challenge a general measure must be differentiated from all others affected by it in the same way as an addressee.
50 In those circumstances, and having regard to the fact that the EC Treaty established a complete system of legal remedies and procedures designed to permit the Community judicature to review the legality of measures adopted by the institutions (paragraph 23 of the judgment in Les Verts v Parliament, cited in paragraph 41 above), the strict interpretation, applied until now, of the notion of a person individually concerned according to the fourth paragraph of Article 230 EC, must be reconsidered.
51 In the light of the foregoing, and in order to ensure effective judicial protection for individuals, a natural or legal person is to be regarded as individually concerned by a Community measure of general application that concerns him directly if the measure in question affects his legal position, in a manner which is both definite and immediate, by restricting his rights or by imposing obligations on him. The number and position of other persons who are likewise affected by the measure, or who may be so, are of no relevance in that regard.
52 In the present case, obligations are indeed imposed on Jégo-Quéré by the contested provisions. The applicant, whose vessels are covered by the scope of the regulation, carries on fishing operations in one of the areas in which, by virtue of the contested provisions, such operations are subjected to detailed obligations governing the mesh size of the nets to be used.
53 It follows that the contested provisions are of individual concern to the applicant.
54 Since those provisions are also of direct concern to the applicant (see paragraph 26 above), the objection of inadmissibility raised by the Commission must be dismissed and an order made for the action to proceed.
Costs
55 The costs should be reserved pending final determination of the substance of the dispute.
On those grounds,
THE COURT OF FIRST INSTANCE
(First Chamber, Extended Composition)
hereby:
1. Dismisses the objection of inadmissibility;
2. Orders that the proceedings be continued in relation to the substance;
3. Reserves the costs.
