(Conservation and exploitation of fisheries resources – Regulation (EC) No 2371/2002)

Opinion of Advocate General Tizzano delivered on 13 January 2005

Judgment of the Court (Second Chamber), 17 March 2005.

Summary of the Judgment

(Art. 37 EC; Council Regulation No 2371/2002, Annex I, point 6)

(Council Regulation No 2371/2002)

None the less, the Community legislature may, exercising the competence conferred on it by Article 37 EC, adopt new rules with content analogous to the rule in Article 160 of the Act of Accession, such as those in point 6 of Annex I to Regulation No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the common fisheries policy, which defines the conditions of access for Spanish fishing vessels to French coastal bands.

(see paras 27-29)

(see paras 45, 50-51, 54-55)

JUDGMENT OF THE COURT (Second Chamber) 17 March 2005(1)

(Conservation and exploitation of fisheries resources – Regulation (EC) No 2371/2002)

In Case C-91/03, ACTION for annulment under Article 230 EC, brought on 28 February 2003,

Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,

applicant,

Council of the European Union, represented by J. Carbery, F. Florindo Gijón and M. Balta, acting as Agents,

defendant, supported by: Commission of the European Communities, represented by T. van Rijn and S. Pardo Quintillàn, acting as Agents, with an address for service in Luxembourg, French Republic, represented by G. de Bergues and A. Colomb, acting as Agents, with an address for service in Luxembourg,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann, R. Schintgen, P. Kūris (Rapporteur) and J. Klučka, Judges,

Advocate General: A. Tizzano, Registrar: K. Sztranc, Administrator,

having regard to the written procedure and further to the hearing on 11 November 2004,

after hearing the Opinion of the Advocate General at the sitting on 13 January 2005,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

or

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

Arguments of the parties

19

The Spanish Government maintains that Article 160 of the Act of Accession 1985, which restricted access by Spanish vessels to the zone within 12 nautical miles calculated from the baselines (‘the 12-mile zone’) of the French coast and to the zone beyond 12 miles, has not been applicable since 31 December 2002, by virtue of the provisions relating to the transitional period provided for by Article 166 of that Act of Accession. Consequently, the restrictions covering both the 12-mile zone and the zone beyond 12 miles ought to have been repealed. By continuing those restrictions, the contested regulation unjustifiably prolongs the transitional arrangements beyond the time-limit fixed by that Act.

Furthermore, the Spanish Government argues that there is no specific measure concerning access to pelagic species in the 12-mile zone that requires special management of that zone.

21

The Council contends that it is not the purpose of Article 166 of the Act of Accession 1985 to restrict the powers of the Community legislature after 31 December 2002. Provisions adopted on the basis of Article 37 EC are new measures the lawfulness of which may be evaluated only having regard to the provisions of the Treaty in force.

22

The Council states, moreover, that Annex I to Regulation No 170/83 was amended by Article 26 of the Act of Accession 1985 and by Chapter XV of Annex I to that Act. That article appears in Part Three of the Act of Accession, relating to adaptations to acts adopted by the institutions, and not in Part Four of that Act, relating to transitional measures. As a result, the Council considers that the adaptations to Regulation No 170/83 are unlimited in duration and cannot be regarded as temporary measures.

According to the Council, Articles 156 to 164 of the Act of Accession 1985 do not mention the arrangements for access to the coastal band of the French Republic. It is, in its view, unreasonable to interpret Article 166 of that Act of Accession as applying also to the expiry of a provision to which no reference is made, but which was to be found in a regulation amended pursuant to Article 26 of that Act and the content of which was reiterated in the regulation adopted on the basis of Article 37 EC. What is more, it maintains that Article 166 does not regulate the arrangements for access to the coastal band.

24

In addition, it argues that the Kingdom of Spain’s request that the conditions for fishing in the coastal band should apply without limit in time is not supported by any legal basis.

25

The Commission, intervening in support of all the Council’s arguments, considers in particular that the Spanish Government misinterprets the provisions of the Act of Accession 1985. In its opinion, Article 166 of that Act does not refer to the conditions of access of Spanish vessels to French Atlantic waters within the 12-mile zone. The Act of Accession does no more than adapt Annex I to Regulation No 170/83 by supplementing the table which sets out in detail the conditions for access to the Member States’ coastal zones.

26

The French Government considers that the adaptations to Regulation No 170/83 were made pursuant to Article 26 of the Act of Accession 1985, which appears, not in Part Four of that act concerning transitional measures, but in Part Three, relating to adaptations to acts adopted by the institutions. It follows that measures taken pursuant to that article are permanent in nature. In consequence, point 6 of Annex I to the contested regulation cannot constitute an infringement of the transitional measures of the Act of Accession 1985.

Findings of the Court

27

As the Spanish Government and the Commission observed at the hearing, it must be held that Article 160 of the Act of Accession 1985 contains a rule analogous to that at issue in these proceedings and that it does not draw any distinction, so far as its ambit is concerned, between the waters comprised in the 12-mile zone and waters beyond that zone.

28

It must also be found that that provision, appearing in Part Four of the Act of Accession 1985 relating to transitional measures, has not been applicable since the date fixed by Article 166 of that Act, viz., 31 December 2002.

29

It does not, however, follow from those findings that the Community legislature could not adopt the contested rule under its competence conferred by Article 37 EC.

30

That Articles 160 and 166 of the Act of Accession 1985 want legal effect is due, in particular, to the circumstance that, with regard to the 12-mile zone, Annex I to Regulation No 170/83 has been added to by a rule analogous to that at issue in the present case by virtue of Article 26 of the Act of Accession 1985, with the result that that rule quite apparently falls within the competence of the Community legislature as defined in Article 37 EC.

31

It follows from all the foregoing that the plea alleging infringement of the act of Accession 1985 must be rejected.

Concerning the plea alleging breach of the principle of non-discrimination

32

The Spanish Government claims that point 6 of Annex I to the contested regulation imposes restrictions which do not exist, either as regards French vessels’ access to Spanish coastal bands or as regards other Member States’ coastal bands. It states that the Kingdom of Spain is the only Member State the vessels of which have restricted access to the coastal bands of its neighbour State. It concludes therefrom that it is afforded discriminatory treatment contrary to the principle of equality enshrined in Article 12 EC and Article 34(2) EC relating to the common agricultural policy and fisheries.

33

The Spanish Government states that the common policy rules may be differentiated according to zones or regions only on the basis of criteria that ensure a proportionate division of advantages and disadvantages between those concerned, without distinguishing between the territories of the Member States. In the instant case, there is, in its view, no objective reason for different treatment.

34

Furthermore, the Spanish Government claims that, on the one hand, the same restrictions of access as those imposed on vessels when the Kingdom of Spain acceded to the Community have been maintained, without account’s being taken of the expiry of the transitional period and, on the other, the Agreement on fisheries concluded between the Community and the Government of Spain on 15 April 1980 and approved by Council Regulation (EEC) No 3062/80 of 25 November 1980 (OJ 1980 L 322, p. 3) concerns only the exclusive 200-mile economic zone.

35

The Council maintains that it is sufficient to examine Annex I to the contested regulation to find that the rules of access are not reciprocal. Access is often restricted by species and sometimes limited in time.

36

In its view, those limitations originate in the desire to comprehend traditional fishing activities in those zones in order to enable them to continue. The list of those limitations does not answer to any geographic criterion of neighbourhood or reciprocity.

The Council contends that in that way the Kingdom of Spain keeps for its vessels the same conditions of access as those they had before that State acceded to the Community and until the contested regulation was adopted. Furthermore, it states that before that accession the fishing agreement concluded on 15 April 1980 between the Community and the Kingdom of Spain granted no unlimited access for the latter’s vessels to the French coastal band.

38

Consequently, the Council considers that the Kingdom of Spain has in no way been the victim of discrimination, but has rather been afforded treatment that is objective and comparable to that afforded the other Member States.

39

In addition, the Council argues that the applicant has furnished no explanation of how it considers that the institution, by adopting the contested regulation, acted in manifestly inappropriate fashion in the exercise of its powers. The Council observes that while, beyond the 12 nautical miles calculated from the baselines of the Member States, the principle is of free access to the waters for all Community vessels, within the 12-mile zone, on the other hand, the arrangements reserve access to the fishing vessels that traditionally operate there from ports on the adjacent coast. As a result, limited access to those waters for vessels that do not operate out of those ports is already a privileged legal situation. Spanish vessels alone have access to the French 12-mile zone.

40

The Commission maintains that the Kingdom of Spain’s plea is founded on a misunderstanding of the whole legislative context. It stresses the difference in kind that exists between the arrangements applicable to waters and resources situated, on the one hand, within the 12-mile zone and, on the other, beyond that zone. That limitation of access is based on objective grounds of conservation of the most sensitive of Community waters, such as those situated near to coasts and on social and economic grounds intended to protect the activity of fishing with small-tonnage vessels. It considers that, contrary to the Spanish Government’s submission, the extension until 31 December 2012 of the arrangements for limited access to the waters under the sovereignty or jurisdiction of the other Member States is more than justified in the wording of the regulation, properly speaking, and in particular in the 14th recital in the preamble thereto. It is therefore of the opinion that there exists an objective reason for distinguishing the arrangements applicable to the 12-mile zone from those applicable to the zone beyond the 12 miles. It states that, in defining the conditions on which Spanish vessels have access to French coastal waters, the Council took into account the traditional conditions for access existing before the Kingdom of Spain acceded to the Community, linked to neighbourhood relations.

41

The French Government argues that the objective pursued by the contested regulation is the sustainable continuation of traditional fishing activity and that, as a result, it is inappropriate to use criteria based on reciprocity.

42

It emphasises, furthermore, on the one hand, that in the six-to-12-mile zone calculated from the baselines of the Spanish coasts French vessels are authorised to fish only for pelagic species and, on the other, that the contested regulation offers the same opportunities for access as those that Spanish vessels have always enjoyed since their Member State acceded to the Community. It concludes that Spain has not been treated in a discriminatory manner.

Findings of the Court

43

It is settled case-law that the principle of non-discrimination requires that comparable situations must not be treated differently unless such treatment is objectively justified (Joined Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, paragraph 9).

44

It is appropriate to observe that, with regard to the 12-mile zone, Article 17(2) of the contested regulation explicitly authorises the Member States to restrict fishing to vessels that traditionally operate within that zone from ports on the adjacent coast. However, that article provides for certain specific arrangements giving Community fishing vessels flying the flags of other Member States the right to fish in the 12-mile zones under pre-existing neighbourhood relations between Member States. Annex I to the contested regulation, referred to by Article 17(2), fixes for each of the Member States the geographical zones within the coastal bands of other Member States where those activities are pursued and the species concerned.

45

It is furthermore to be borne in mind that the 14th recital in the preamble to the contested regulation states that ‘[r]ules in place restricting access to resources within the 12 nautical mile zones of Member States have operated satisfactorily benefiting conservation by restricting fishing effort in the most sensitive part of Community waters and preserving traditional fishing activities on which the social and economic development of certain coastal communities is highly dependent’ and that ‘[t]hey should therefore continue to apply until 31 December 2012’.

46

The Spanish Government has not challenged the fundamental principles underlying the arrangements applicable to the 12-mile zones and established by the contested regulation.

47

None the less, it considers that by adopting point 6 of Annex I to the contested regulation, the Council has caused the Kingdom of Spain to suffer discrimination contrary to the principle of equality enshrined in Article 12 EC and Article 34(2) EC relating to the common agricultural policy and fisheries.

48

It maintains, in particular, that the common policy rules may be differentiated depending on zones or regions only on the basis of objective criteria that ensure a proportionate division of the advantages and disadvantages between those concerned, without distinguishing between the territories of the Member States. In the circumstances of the case, it believes that there is no objective reason justifying different treatment.

49

That plea in law is unfounded.

50

In this regard, the Council, the Commission and the French Government correctly point out that the purpose of the arrangements applicable to the 12-mile zones, provided for by Article 17(2) of the contested regulation, is to protect the most sensitive Community waters, while taking account of the need to preserve traditional fishing activities.

Such a purpose does not of itself entail the application of criteria of reciprocity.

In any case, the Spanish Government has not demonstrated that, by adopting point 6 of Annex I to the contested regulation, the Council has departed from the stated purpose.

It is apparent simply from reading Annex I to the contested regulation that access to the coastal bands of Member States other than the French Republic, when accorded to Community fishing vessels, is restricted in time and limited to certain species.

In addition, it is to be recalled that point 6 of Annex I to the contested regulation does no more than extend the arrangements that have been in force since the Kingdom of Spain acceded to the Community.

In those circumstances, the plea in law alleging breach of the principle of non-discrimination must be rejected.

From all the foregoing it follows that the Kingdom of Spain’s action must be dismissed.

Costs

Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been applied for. Since the Council has applied for costs and the Kingdom of Spain has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Council. In accordance with Article 69(4) of those Rules, a Member State or institution intervening in the proceedings is to bear its own costs. The Commission and the French Republic, as interveners, are therefore to bear their own costs.

On those grounds, the Court (Second Chamber) hereby:

1.Dismisses the action;

2.Orders the Kingdom of Spain to bear its own costs and those incurred by the Council of the European Union;

3.Orders the French Republic and the Commission of the European Communities to bear their own costs.

[Signatures]

*1 Language of the case: Spanish.