Judgments nº T-251/18 of Tribunal General de la Unión Europea, March 10, 2020

• Resolution Date: March 10, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-251/18

(Fisheries - Conservation of marine biological resources - Regulation (EU) 2018/120 - Measures concerning the fishing for European seabass (Dicentrarchus labrax) - Action for annulment brought by an association - Article 263 TFEU - Regulatory act not entailing implementing measures - Direct concern of the members of the association - Admissibility - Competence of the European Union to regulate recreational fisheries - Legal certainty - Protection of legitimate expectations - Equal treatment - Principle of non-discrimination - Proportionality - Precautionary principle - Freedom of association and freedom to conduct a business)

In Case T-251/18,

International Forum for Sustainable Underwater Activities (IFSUA), established in Barcelona (Spain), represented by T. Gui Mori and R. Agut Jubert, lawyers,

applicant,

v

Council of the European Union, represented by F. Naert and P. Plaza García, acting as Agents,

defendant,

supported by

European Commission, represented by M. Morales Puerta, F. Moro and A. Stobiecka-Kuik, acting as Agents,

intervener,

ACTION under Article 263 TFEU for annulment in part of Council Regulation (EU) 2018/120 of 23 January 2018 fixing for 2018 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union fishing vessels, in certain non-Union waters, and amending Regulation (EU) 2017/127 (OJ 2018 L 27, p. 1),

THE GENERAL COURT (First Chamber),

composed of V. Valančius, acting as President, P. Nihoul (Rapporteur) and J. Svenningsen, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written part of the procedure and further to the hearing on 16 October 2019,

gives the following

Judgment

Background to the dispute

1 The applicant, the International Forum for Sustainable Underwater Activities (IFSUA), is a non-profit association governed by Spanish law which brings together some 30 entities from various Member States of the European Union. Those entities consist of federations, associations and sports clubs, which are active in the field of underwater activities and recreational sea fishing, and of undertakings which manufacture or sell underwater fishing equipment.

2 The applicant’s mission is to protect the interests of its members in the practice of underwater activities in the marine environment. It also aims to influence, through the knowledge and experience of its members, national and international regulations on the sustainable use of the marine environment. In addition, it is a permanent member of the Working Group on Recreational Fisheries Surveys within the International Council for the Exploration of the Sea (ICES). ICES is a scientific and technical body which conducts assessments relating to fish species, groups of species and fisheries. It issues opinions based mainly on biological criteria, and makes recommendations concerning catch levels or attendant technical measures.

3 On the basis of Article 43(3) TFEU and in accordance with the arrangements laid down in Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ 2013 L 354, p. 22, ‘the CFP Regulation’), the Council of the European Union fixes and allocates fishing opportunities annually.

4 On 23 January 2018, the Council adopted Regulation (EU) 2018/120 fixing for 2018 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union fishing vessels, in certain non-Union waters, and amending Regulation (EU) 2017/127 (OJ 2018 L 27, p. 1, ‘the contested regulation’).

5 Article 2(2) of the contested regulation, which concerns the scope of that regulation, provides that it is to apply to recreational fisheries where they are expressly referred to in its provisions.

6 Article 3(b) of the contested regulation defines recreational fisheries as ‘non-commercial fishing activities exploiting marine biological resources such as for recreation, tourism or sport’.

7 Article 9(1) to (3) of the contested regulation lays down the measures applicable to commercial fishing for European seabass.

8 Article 9(4) and (5) of the contested regulation regulates recreational fishing for European seabass in two areas.

9 To the north, the first area referred to in paragraph 8 above comprises the statistical areas identified and defined by the ICES (‘ICES divisions’) as ICES divisions 4b, 4c and 7a to 7k, which correspond to the central and southern North Sea, the Irish Sea, the west of Ireland, the Porcupine Bank, the English Channel, the Bristol Channel, the Celtic Sea and the south-west of Ireland (‘the first area’).

10 Under Article 9(4) of the contested regulation, in the first area, only catch-and-release fishing for European seabass is allowed in recreational fisheries. Accordingly, recreational fishermen are prohibited from retaining on board, relocating, transhipping or landing European seabass caught in that area.

11 To the west, the second area referred to in paragraph 8 above covers ICES divisions 8a and 8b, which correspond to a part of the Bay of Biscay (‘the second area’).

12 In the second area, recreational fishermen are permitted to retain European seabass, but the number of specimens is limited to three per day per fisherman, in accordance with Article 9(5) of the contested regulation.

Procedure and forms of order sought

13 By an application lodged at the Court Registry on 23 April 2018, the applicant brought the present action.

14 By a separate document lodged on 7 June 2018, the applicant made an application for interim measures seeking to suspend the operation of Article 2(2) and Article 9(4) and (5) of the contested regulation. By order of 20 August 2018, IFSUA v Council (T-251/18 R, not published, EU:T:2018:516), the President of the General Court dismissed the application for interim measures and ordered that the costs be reserved.

15 By a document lodged at the Court Registry on 10 August 2018, the European Commission applied for leave to intervene in support of the form of order sought by the Council. By decision of 17 September 2018, the President of the First Chamber of the General Court granted leave to intervene. The intervener lodged its statement in intervention and the main parties lodged their observations on that statement within the period prescribed.

16 By a measure of organisation of procedure, on the basis of Article 89(3) of its Rules of Procedure, the Court put written questions to the applicant and invited the other parties to submit their observations on the applicant’s replies.

17 The parties presented oral argument at the hearing on 16 October 2019.

18 The applicant claims that the Court should:

- annul Article 2(2) and Article 9(4) and (5) of the contested regulation;

- annul the recitals of that regulation which relate to those provisions.

19 In its observations on the statement in intervention, the applicant withdrew its challenge to Article 2(2) of the contested regulation.

20 At the hearing, the applicant stated that the action was not directed against the recitals of the contested regulation, contrary to what was stated in the second paragraph of the first page of the application, formal note of which was recorded in the minutes of the hearing.

21 The Council contends that the Court should:

- dismiss the action as inadmissible in part and, as to the remainder, as unfounded;

- order the applicant to pay the costs.

22 The Commission contends that the Court should:

- dismiss the action as inadmissible or as unfounded;

- order the applicant to pay the costs.

Law

23 At the outset, it should be noted that, during the proceedings before the Court, the applicant withdrew its claims in so far as they were directed, first, against Article 2(2) of the contested regulation and, second, against the recitals of the contested regulation which relate to Article 2(2) and Article 9(4) and (5) thereof, with the result that there is no need to rule on those heads of claim.

Admissibility

Severability of the contested provisions

24 The Commission takes the view that the action is inadmissible in that it seeks the annulment in part of the contested regulation. The Commission submits that, contrary to the requirements of the case-law, Article 9(4) and (5) of the contested regulation, whose annulment the applicant seeks (‘the contested provisions’), cannot be severed from the remainder of the contested regulation.

25 In that regard, even though, in its capacity as intervener, the Commission cannot raise a plea of inadmissibility on its own initiative, pursuant to Article 142(3) of the Rules of Procedure (see, to that effect, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T-578/17, not published, EU:T:2019:437, paragraph 36), the Court must, in any event, examine the question at issue, since the admissibility of the action is a matter of public policy (see, to that effect, order of 25 January 2017, Internacional de Productos Metálicos v Commission, T-217/16, not published, EU:T:2017:37, paragraph 24, and judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T-578/17, not published, EU:T:2019:437, paragraph 36).

26 In that regard, it should be noted that annulment in part of an act of EU law can be ordered by the EU judicature only if the elements whose annulment is sought may be severed from the remainder of the act. That is not the case where the annulment in part of an EU act would have the effect of altering its substance (see judgment of 27 June 2006, Parliament v Council, C-540/03, EU:C:2006:429, paragraphs 27 and 28 and the case-law cited).

27 In the present case, the contested provisions relate to a specific subject matter, namely recreational fishing for European seabass in...