Astipesca SL v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 62000TJ0180
• ECLI: ECLI:EU:T:2002:249
• Court: General Court (European Union)
• Date: 17 October 2002
• Docket Number: T-180/00
• Procedure Type: Recurso de anulación - infundado

Avis juridique important

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62000A0180

Judgment of the Court of First Instance (Third Chamber) of 17 October 2002. - Astipesca SL v Commission of the European Communities. - Fisheries - Reduction of Community financial aid - Action for annulment - Articles 44 and 47 of Regulation (EEC) No 4028/86 and Article 7 of Regulation (EEC) No 1116/88 - Principle of proportionality - Action for compensation. - Case T-180/00.

European Court reports 2002 Page II-03985

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1. Fisheries - Common structural policy - Support for the creation of joint enterprises - Community financial assistance - Reduction in assistance - Condition

(Council Regulation No 4028/86, Art. 44(1))

2. Community law - Principles - Proportionality - Reduction of financial aid as a result of non-compliance on the part of the beneficiary joint enterprise of the obligation to fish in the waters of the third country referred to in the decision to grant assistance - Breach - None

(Council Regulation No 4028/86, Arts 21a and 44(1), first indent)

3. Actions for damages - Independent of actions for annulment - Action seeking withdrawal of an individual decision which has become definitive - Inadmissible

(Arts 215 EC and 288, second para., EC)

Summary

$$1. Under the first indent of Article 44(1) of Regulation No 4028/86 on Community measures to improve and adapt fisheries and aquaculture structures, the Commission may decide to reduce the financial aid granted to a joint enterprise if the project is not carried out as specified. The exercise of the power to reduce aid thus conferred upon the Commission is not conditional on the finding of unlawful enrichment of the beneficiary of the aid.

( see paras 80, 107 )

2. The Commission is not in breach of the principle of proportionality when it decides, pursuant to the first indent of Article 44(1) of Regulation No 4028/86 on Community measures to improve and adapt fisheries and aquaculture structures, to reduce by one tenth the financial aid granted to a joint enterprise created for the purpose of exploiting and where applicable using, with the primary consideration being given to the supply of the Community market, the fishery resources of waters falling within the sovereignty and/or jurisdiction of a specific third country, on the ground that that enterprise has not complied with an essential condition for the proper management and stability of the international relations between the Community and non-member countries in the framework of the fisheries policy, that is, the obligation to fish in the waters of the third country referred to in the decision to grant assistance.

It was reasonable for the Commission to consider that a less severe sanction was likely to compromise the sound management of the structural policy for fisheries and to invite fraud, since beneficiaries of aid would be tempted to change fishing zones without informing the Commission, at the risk only of having that aid reduced in a symbolic manner or, in any event, to an extent less than that which corresponds to the seriousness and duration of the infringement.

( see paras 90-91, 112, 114 )

3. While, clearly, a claim for damages based on the second paragraph of Article 288 EC is an independent form of action in the system of remedies available in Community law, so that the fact that an application for annulment is inadmissible does not in itself render a claim for damages inadmissible, a claim for damages must nevertheless be held to be inadmissible when it is actually aimed at securing withdrawal of an individual decision which has become definitive and would, if upheld, have the effect of nullifying the legal effects of that decision.

( see para. 139 )

Parties

In Case T-180/00,

Astipesca, SL, established in Huelva (Spain), represented by J.-R. García-Gallardo Gil-Fournier and M.D. Domínguez Pérez, lawyers,

applicant,

v

Commission of the European Communities, represented initially by L. Visaggio and, subsequently, by S. Pardo Quintillán, acting as Agents, assisted by J. Guerra Fernández, lawyer, with an address for service in Luxembourg,

defendant,

APPLICATION for, first, annulment of the Commission's fax of 5 May 2000 informing the applicant of the payment, on 4 May 2000, of part of the balance of the financial aid granted to project SM/ESP/20/92 and of the contents of the Commission's letter of 18 May 2000, reducing the abovementioned aid and, second, compensation on the grounds of the allegedly unlawful suspension of payment of the balance of that aid and of the abovementioned reduction,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

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

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 8 May 2002

gives the following

Judgment

Legal background

Grounds

1 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 in turn by Council Regulation (EEC) No 3944/90 of 20 December 1990 (OJ 1990 L 380, p. 1), by Council Regulation (EEC) No 2794/92 of 21 September 1992 (OJ 1992 L 282, p. 3) and by Council Regulation (EEC) No 3946/92 of 19 December 1992 (OJ 1992 L 401, p. 1), provides in Articles 21a to 21d that the Commission may grant various kinds of financial aid to joint enterprise fisheries projects, of amounts differing according to the tonnage and age of the vessels in question, in so far as those projects satisfy the conditions set by the Regulation.

2 Joint enterprise is defined, in Article 21a of Regulation No 4028/86, as follows:

For the purposes of this Title, "joint enterprise" means a company incorporated under private law comprising one or more Community shipowners and one or more partners from a third country with which the Community maintains relations, associated under a joint enterprise agreement 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.

3 Article 21b(2) of Regulation No 4028/86 reads as follows:

To qualify for financial aid, the joint enterprise projects must relate to vessels of length measuring more than 12 metres between perpendiculars, which are technically suited to the fishing operations planned, have been in operation for more than five years, fly the flag of a Member State, are registered in a Community port and are to be transferred definitively to the third country concerned under the joint enterprise. ...

4 Article 21d(1) and (2) of Regulation No 4028/86 lays down the detailed rules governing the submission of a request for financial aid and the procedure for granting it. Article 21d(3) states that, for projects qualifying for financial aid, the beneficiary is to forward to the Commission and to the Member State a periodic report on the activities of the joint enterprise.

5 Article 44 of Regulation No 4028/86 provides:

1. 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 ...

Decisions shall be notified to the Member State concerned and to the beneficiary.

The Commission shall take steps to recover any sums unduly paid.

2. Detailed rules for applying this article shall be adopted by the Commission in accordance with the procedure laid down in Article 47.

6 Article 47 of Regulation No 4028/86 provides:

1. Where the procedure laid down in this article is to be followed, matters shall be referred to the Standing Committee for the Fishing Industry, by its chairman, either on his own initiative or at the request of the representative of the Member State.

2. The representative of the Commission shall submit a draft of the measures to be taken. The Committee shall deliver its opinion within a time-limit to be set by the chairman according to the urgency of the matter. ...

3. The Commission shall adopt the measures which shall apply immediately. However, if these measures are not in accordance with the opinion of the Committee, the Commission shall forthwith communicate them to the Council. In that event the Commission may defer their application for not more than one month from the date of such communication. The Council, acting by a qualified majority, may adopt different measures within one month.

7 On 20 April 1988, the Commission adopted Regulation (EEC) No 1116/88 laying down detailed rules for the application of decisions granting aid for projects concerning Community measures to improve and adapt structures in the fisheries and aquaculture sector and in structural works in coastal waters (OJ 1988 L 112, p. 1).

8 Article 7 of Regulation No 1116/88 provides:

Before initiating a procedure for suspending, reducing or terminating aid in accordance with Article 44(1) of Regulation ... No 4028/86, the Commission shall:

- inform the Member State on whose territory the project was to be carried out, so that it may express its views on the matter,

- consult the competent authority responsible for forwarding supporting documents,

- ask the beneficiary to provide, through the authority or agency, an explanation for the failure to comply with the conditions laid down.

9 On 21 June 1991 the Commission adopted Regulation (EEC) No 1956/91 laying down...