Orders nº T-293/18 of Tribunal General de la Unión Europea, January 30, 2020

• Resolution Date: January 30, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-293/18

(Action for annulment - Common fisheries policy - Treaty of Paris on the archipelago of Spitsbergen (Norway) - Fishing opportunities for snow crab around the area of Svalbard (Norway) - Regulation (EU) 2017/127 - EU-registered vessels authorised to fish - Detention of a Latvian vessel - Article 265 TFEU - Invitation to act - Adoption of a position by the Commission - Measure not producing binding legal effects - Inadmissibility)

In Case T-293/18,

Republic of Latvia, represented by V. Soņeca, acting as Agent,

applicant,

v

European Commission, represented by A. Bouquet, E. Paasivirta, I. Naglis and A. Sauka, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU seeking, first, annulment of the Commission’s letter of 12 March 2018 by which that institution adopted its position on the invitation to act which the Republic of Latvia had addressed to it, pursuant to Article 265 TFEU, by letter of 22 December 2017 and which was intended, in essence, to require the Commission to adopt measures relating to the defence of the fishing rights and European Union interests in the Svalbard fishing area (Norway) and, second, to order the Commission to adopt a position in that regard which is not the source of legal effects unfavourable to the Republic of Latvia,

THE GENERAL COURT (Fourth Chamber),

composed, at the time of the deliberation, of H. Kanninen, President, J. Schwarcz and C. Iliopoulos (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 By letter of 22 December 2017, received by the European Commission on 12 January 2018, the Republic of Latvia called on the Commission to act, pursuant to Article 265 TFEU, by adopting measures for the defence of fishing rights and EU interests in the Svalbard fishing area in Norway (‘the invitation to act’). More specifically, it requested the Commission to adopt the following measures:

- arrange and participate in official talks with the [Kingdom of Norway] in the first quarter of 2018 (by 31 March 2018) with the aim of securing the [EU’s] fishing rights in the Svalbard fishing area and thereby enable [EU] vessels which have been awarded opportunities, in accordance with the Union’s legal framework, to fish for snow crab in the Svalbard fishing area, actually to exercise those rights;

- in the event that the [EU’s] fishing rights in the Svalbard fishing area cannot be secured by 31 March 2018, bring international judicial proceedings against the [Kingdom of Norway].

2 By letter of 12 March 2018, the Commission replied to the invitation to act, setting out its position on the alleged failure to act within the meaning of Article 265 TFEU and, in particular, the two measures sought by the Republic of Latvia (‘the contested letter’).

3 As regards the first measure proposed by the Republic of Latvia, that negotiations with the Kingdom of Norway should be organised and in which the Commission would participate with a view to ensuring that EU fishing rights in the Svalbard fishing area up to the deadline of 31 March 2018 were upheld, the Commission impliedly rejected it, stating, in essence, that it would continue to participate in the negotiations without fixing a final date for the end of those negotiations. More specifically, the Commission stated as follows:

‘53. Despite the current stalemate of discussions with [the Kingdom of Norway], the Commission will continue to look for solutions to this dispute with Norwegian authorities, based on dialogue and constructive approach, rather than confrontation. At the same time, given the high stakes beyond fisheries, the Commission will try to ensure that whatever solution is found, it is consistent with the [EU’s] position on Svalbard.

54. The most recent Note verbale extends the invitation to [the Kingdom of Norway] to renew the dialogue with the EU in order to arrive, like many times in the past, [at] a mutually satisfactory arrangement allowing the resumption by [EU] fishing vessels of fishing activities in the area. It is also clear, considering recent Norwegian reactions, that it is at present unlikely that in the immediate future a solution will be found and precautions must be taken to avoid escalation of the disagreement to the expense of pressing strategic interests in the relationship with [the Kingdom of Norway], as well as in the Arctic region.’

    4 As regards the second measure proposed by the Republic of Latvia, that international legal proceedings should be initiated against the Kingdom of Norway after 31 March 2018, the Commission stated, in essence, that it could not act on that measure, since there were procedural obstacles. More specifically, the Commission stated as follows:

    ‘55. As regards the suggestion in the [invitation to act] to bring international judicial proceedings against [the Kingdom of Norway], and leaving aside any substantive considerations, there are clear procedural impediments, which the [invitation to act] does not take into account.

56. Firstly, it should be noted that the 1920 Treaty of Paris does not provide for a dispute-settlement mechanism. The dispute-settlement mechanisms provided for by the United Nations Convention on Law of the Sea (Unclos) are not applicable since the issues are not about the interpretation and application Unclos, but rather about the interpretation and application of the 1920 Treaty of Paris.

57. Secondly, international arbitration is subject to finding an agreement with [the Kingdom of Norway], which is currently highly unlikely in the prevailing circumstances.

58. Thirdly, the default dispute-settlement mechanism that remains is the International Court of Justice. [However], the EU has no legal standing before this Court. In addition, whilst a number of Member States are … party to the 1920 Treaty of Paris, the European Union is not. Nevertheless, the [European Union] has exclusive competence regarding the conservation of marine biological resources.

59. In any event, initiation of international proceedings in a multilateral context could have significant implications. The Treaty of Paris involves 46 Contracting Parties, each with different interpretations of its provisions. Such a step would also risk affecting the [EU’s] bilateral relations with [the Kingdom of Norway] beyond the fisheries issues at stake.

60. Finally, if there is a general principle in international law of peaceful settlement of disputes, there is no obligation under EU or international law to bring judicial proceedings, as international law provides for different ways to settle disputes, not all of them of [a] judicial nature.’

    5 Finally, with regard to its alleged failure to act, within the meaning of Article 265 TFEU, the Commission concluded by stating as follows:

    ‘61. … The Commission has not failed to act on its duties, but it has acted, and continues to do so. In fulfilling its tasks, the Commission chooses the most appropriate ways and steps in order to best safeguard the [EU’s] fishing rights and interests in the Svalbard fishing area, including steps regarding Commission talks and other means to settle the differences with [the Kingdom of Norway]. In this respect, it also takes into account [the EU’s] relations with [the Kingdom of Norway] and the multilateral nature of [the] Treaty of Paris.

62. The Commission is of the opinion that it has done its utmost to find an appropriate, non-confrontational bilateral solution to the snow crab disagreement with [the Kingdom of Norway]. As the above account shows, it has engaged in this matter [in] different ways and [at different] levels, including directly with [the Kingdom of Norway], within the Council context and with [the Republic of Latvia].

63. The issues at stake around Svalbard go beyond fisheries interests and the spill-over risks [are] an important element that had to be taken into account at every step of the way. The Commission, in its role of representing the EU as the only interlocutor for fisheries matters with third countries, has been working at each stage of the process in close cooperation with the Council and the Member States. Every step has been prepared and established by consulting all Member States at Council level and keeping them informed regularly.’

    Procedure and forms of order sought

    6 By application...