Judgments nº T-44/01 of Court of First Instance of the European Communities, Thursday April 03, 2003

• Resolution Date: Thursday April 03, 2003
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-44/01

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

3 April 2003 (1) (Fisheries- Fisheries agreement with Argentina - Community financial aid - Reduction - Actions for annulment - Actions for damages)

In Joined Cases T-44/01, T-119/01 and T-126/01,

Eduardo Vieira, SA, established in Vigo-Pontevedra (Spain), represented by J.-R. García-Gallardo Gil-Fournier and D. Domínguez Pérez, lawyers,

applicant in Cases T-44/01 and T-126/01,

Vieira Argentina, SA, established in Buenos Aires (Argentina), represented by J.-R. García-Gallardo Gil-Fournier and D. Domínguez Pérez, laywers,

applicant in Case T-44/01,

Pescanova, SA, established in Chapela (Spain), represented by A. Creus Carreras, B. Uriarte Valiente and S. Rodríguez Artacho, lawyers,

applicant in Case T-119/01,

v

Commission of the European Communities, represented by S. Pardo Quintillán, acting as Agent, assisted by J. Guerra Fernández, lawyer, with an address for service in Luxembourg,

defendant,

APPLICATION, in Case T-44/01, for compensation under Article 235 EC and the second paragraph of Article 288 EC for damage arising from the suspension of payment of the balance of the financial aid granted to project ARG/ESP/SM/26-94 for the creation of a joint enterprise within the framework of the Agreement between the Community and the Argentinian Republic on relations in the sea fisheries sector; in Case T-119/01, for annulment of the Commission decision of 19 March 2001 reducing the aid granted to project ARG/ESP/SM/17-94 for the purpose of creating a joint enterprise within the framework of the Agreement between the Community and the Argentinian Republic on relations in the sea fisheries sector; and, in Case T-126/01, for annulment of the Commission decision of 19 March 2001 reducing the aid granted to project ARG/ESP/SM/26-94 for the purpose of creating a joint enterprise within the framework of the Agreement between the Community and the Argentinian Republic on relations in the sea fisheries sector,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: K. Lenaerts, President, J. Azizi and M. Jaeger, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 28 November 2002,

gives the following

Judgment

Legal framework

Agreement between the European Economic Community and the Argentine Republic on relations in the sea fisheries sector

1.

The Agreement between the European Economic Community and the Argentine Republic on relations in the sea fisheries sector (hereinafter ‘the fisheries agreement’) was approved on behalf of the Commission by Council Regulation (EEC) No 3447/93 of 28 September 1993 (OJ 1993 L 318, p. 1).

2.

Articles 5(1) and (2) of the fisheries agreement provides:

‘1. The Parties shall create suitable conditions for the establishment in Argentina of undertakings using capital originating in one or more Member States of the Community and the creation of joint enterprises and joint ventures in the fisheries sector between Argentinian and Community shipowners with the aim of jointly exploiting and, where appropriate, jointly processing Argentinian fishery resources under the conditions laid down in Protocol I and Annexes I and II.

2. Argentina shall grant the undertakings referred to in paragraph 1 access to the fishing opportunities set out in Protocol I in accordance with the provisions of Annexes I to IV.’

   3.
   Article 2(e) of the fisheries agreement defines ‘joint enterprise’ as ‘a company constituted under private law consisting of one or more Community shipowners and one or more Argentinian natural or legal persons bound by a joint enterprise contract for the purpose of exploiting and, where appropriate, processing Argentinian fishery resources with a view to the priority supply of the Community market’.
   4.
   The creation of a joint enterprise in principle implies the transfer of a Community vessel (Article 5(3) of the fisheries agreement). That vessel is then removed from the Community register.
   5.
   Point 2 of Annex III to the fisheries agreement provides that projects for the formation of joint enterprises are to be presented to the Commission by the Member States ‘in accordance with Community rules’.
   6.
   Under point 3 of Annex III to the fisheries agreement, the Community is to submit to the Joint Committee the list of projects eligible for financial assistance. That provision provides that:

   ‘The Joint Committee shall evaluate the projects in accordance basically with the following criteria:

   (a) technology appropriate to the proposed fishing operations;

   (b) species and fishing zones;

   (c) modernisation of vessels;

   (d) total investment in the project;

   (e) investment in on-shore plant;

   (f) previous experience of Community shipowner and any Argentinian partner in the fisheries sector.’

   7.
   In accordance with points 4 and 5 of Annex III to the fisheries agreement, projects are approved on the recommendation of the Joint Committee, by the Argentinian enforcement authority and the Community.
   8.
   Protocol I of the fisheries agreement is headed ‘fishing opportunities and financial compensation’. Article 1 sets annual fishing limits for the surplus species (Patagonian grenadier, Argentinian shortfin squid, Patagonian rockcod and/or roughhead grenadier) and non-surplus species (Merluccius hubbsi) covered by the fisheries agreement.
   9.
   Joint enterprises are authorised to catch the surplus and non-surplus species referred to in the quantities specified in Protocol I (Article 6 of the fisheries agreement) and are eligible for financial assistance in accordance with that protocol (Article 7 of the fisheries agreement).
   10.
   To that end, Article 3 of Protocol I provides:

   ‘1. ... the Community shall provide financial assistance for the formation of joint enterprises ...

   This financial assistance ... shall be paid to the Community owner to cover part of his financial contribution to the establishment of a joint enterprise ... and/or to remove the vessels in question from the Community register.

2. With a view to encouraging the establishment and development of joint enterprises, the Community shall grant to joint enterprises established in Argentina financial support of fifteen (15) per cent of the amount paid to the Community owner ...

   ...

4. The provisions governing applications for and the grant of Community assistance to the Community owner as referred to in paragraph 1 shall be laid down in accordance with the relevant Community rules in force ...’.

   Community legislation concerning joint enterprises in the fisheries sector

   11.
   On 18 December 1986, the Council adopted Regulation (EEC) No 4028/86 on Community measures to improve and adapt structures in the fisheries and aquaculture sector (OJ 1986 L 376, p. 7). That regulation, as amended successively by Council Regulation (EEC) No 3944/90 of 20 December 1990 (OJ 1990 L 380, p. 1), Council Regulation (EEC) No 2794/92 of 21 September 1992 (OJ 1992 L 282, p. 3) and Council Regulation (EEC) No 3946/92 of 19 December 1992 (OJ 1992 L 401, p. 1), provides, in Articles 21(b) to 21(d), that the Community may grant various types of financial aid to projects of joint fisheries enterprises, for an amount varying as a function of the tonnage and age of the vessels concerned, in so far as those projects comply with the conditions laid down in the Regulation.
   12.
   Article 21(a) of Regulation No 4028/86 defines ‘joint enterprise’ as a company incorporated under private law ‘comprising one or more Community shipowners and one or more partners from a third country ... , set up for the purpose of exploiting and, where appropriate, using the fishery resources of waters falling within the sovereignty and/or jurisdiction of such third country, primary consideration being given to the supply of the Community market’. The Commission grants financial aid for joint enterprise projects ‘used to cover the financial contribution of the Community partner or partners corresponding to the capital invested in the joint enterprise’ (Article 21(c)(1)).
   13.
   Article 44 of Regulation No 4028/86, which was applicable until 31 December 1993, provides:

   ‘Throughout the period for which aid is granted by the Community, the authority or agency appointed for the purpose by the Member State shall send to the Commission on request all supporting documents and all documents showing that the financial or other conditions imposed for each project are satisfied. The Commission may decide to suspend, reduce or discontinue aid, in accordance with the procedure laid down in Article 47:

   - if the project is not carried out as specified, or

   - if certain conditions imposed are not satisfied ...’.

   14.
   With the adoption of Council Regulation (EEC) No 2080/93 of 20 July 1993 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the financial instrument of fisheries guidance (OJ 1993 L 193, p. 1) and Council Regulation (EC) No 3699/93 of 21 December 1993 laying down the criteria and arrangements regarding Community structural assistance in the fisheries and aquaculture sector and the processing and marketing of its products (OJ 1993 L 346, p. 1), the management and financing of joint enterprises was integrated into the financial instrument for fisheries guidance (FIFG). The Member States are henceforth responsible for selecting which joint enterprise projects to finance. They are also responsible for the management and control of those projects.
   15.
   From 1 January 1994, Regulation No 2080/93 repealed Regulation No 4028/86. Under the second indent of the second subparagraph of Article 9(1) of Regulation No 2080/93, Regulation No 4028/86 and its implementing provisions nevertheless continued to apply to applications for financial aid submitted before 1 January 1994.
   16.
   Finally, Article 24 of...