(Reference for a preliminary ruling from the Tribunal de grande instance de Dinan)

«(Origin of a fishery product – Article 28 EC – National legislation imposing a periodic prohibition on the landing of certain fish catches – Competence of the Member States)»

Opinion of Advocate General Alber delivered on 23 April 2002

Judgment of the Court (Sixth Chamber), 16 January 2003

Summary of the Judgment

Fisheries – Conservation of the resources of the sea – National conservation measures – National legislation prohibiting on a temporary basis the landing of a specific species caught within the territorial waters of another Member State – Not permissible (Council Regulations Nos 3760/92, Art. 10(1), and 850/98, Art. 46(1))

Community fisheries legislation precludes national legislation which prohibits, during a given period, the landing, on part of the coastline of the Member State concerned, of scallops caught within the territorial waters of another Member State. The measures which Member States are empowered to adopt for the conservation and management of fishery stocks, in accordance with Article 10(1), first and second indents, of Regulation No 3760/92 establishing a Community system for fisheries and aquaculture and Article 46(1) of Regulation No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms must concern strictly local stocks or only the fishermen of the Member State concerned or fishing vessels flying the flag of that State and may apply only to waters coming under its sovereignty or jurisdiction.see paras 34-38, operative part

JUDGMENT OF THE COURT (Sixth Chamber) 16 January 2003 (1)

(Origin of a fishery product – Article 28 EC – National legislation imposing a periodic prohibition on the landing of certain fish catches – Competence of the Member States)

In Case C-265/01,

REFERENCE to the Court under Article 234 EC from the Tribunal de grande instance de Dinan (France), for a preliminary ruling in the criminal proceedings pending before that court against

Comité Région pêches maritimes, civil party in those proceedings, on the interpretation of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and of Article 28 EC,

THE COURT (Sixth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann, F. Macken (Rapporteur), N. Colneric and J.N. Cunha Rodrigues, Judges,

Advocate General: S. Alber, Registrar: M.-F. Contet, Administrator,

after considering the written observations submitted on behalf of:

the French Government, by L. Bernheim and G. de Bergues, acting as Agents,

the Commission of the European Communities, by A. Bordes and T. van Rijn, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the French Government, represented by L. Bernheim, the Netherlands Government, represented by J. van Bakel, acting as Agent, and the Commission, represented by A. Bordes and T. van Rijn, at the hearing on 21 March 2002,

after hearing the Opinion of the Advocate General at the sitting on 23 April 2002,

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.

(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;

(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

11

The provisions and annexes of that last regulation, with the exception of Articles 11 and 18 to 20, were repealed by Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms (OJ 1998 L 125, p. 1).

12

Article 46(1) of Regulation No 850/98 provides: Member States may take measures for the conservation and management of stocks:

(a)

in the case of strictly local stocks which are of interest solely to the fishermen of the Member State concerned; or

(b)

in the form of conditions or detailed arrangements designed to limit catches by technical measures:

(i)

supplementing those laid down in the Community legislation on fisheries; or

(ii)

going beyond the minimum requirements laid down in the said legislation; provided that such measures apply solely to the fishermen of the Member State concerned, are compatible with Community law, and are in conformity with the common fisheries policy.

13

That article was modified as follows by Council Regulation (EC) No 1298/2000 of 8 June 2000 amending for the fifth time Regulation (EC) No 850/98 (OJ 2000 L 148, p. 1), in order to clarify its applicability:

Member States may take measures for the conservation and management of stocks:

(a)

in the case of strictly local stocks which are of interest solely to the Member State concerned; or

(b)

in the form of conditions or detailed arrangements designed to limit catches by technical measures:

(i)

supplementing those laid down in the Community legislation on fisheries; or

(ii)

going beyond the minimum requirements laid down in the said legislation; provided that such measures apply solely to fishing vessels flying the flag of the Member State concerned and registered in the Community or, in the case of fishing activities which are not conducted by a fishing vessel, to persons established in the Member State concerned.

14

On 19 March 1980, the French Minister for Transport adopted Order No 794 P-3, laying down rules for the catching and landing of scallops (the Order), Article 1 of which provides that [i]n coastal waters between the Belgian and Spanish frontiers it is prohibited to catch scallops between 15 May and 30 September and Article 3 of which provides that it is prohibited to land scallops during periods closed to such fishing.

The main proceedings and the questions referred for a preliminary ruling

15

Annie Pansard and Others, who are fishermen, fished for scallops in the territorial waters of the Channel Island of Jersey, from vessels registered in France, under licences issued by the Jersey authorities permitting fishing by diving. They landed those catches on the French coast, at Saint-Cast Le Guildo between 24 May and 2 June 2000 and at Saint-Suliac on 30 July 2000. Since those landings infringed the Order, Ms Pansard and Others were prosecuted before the court making the reference.

Before that court, the accused in the main proceedings stated that, after they had informed the Commission of the difficulties they were experiencing, the Commission was examining the possibility of bringing an action against the French Republic for failure to comply with obligations under the Treaty. They also asked the national court to refer a question to the Court of Justice for a preliminary ruling concerning the compatibility of the Order with Community law. They therefore requested the court to stay proceedings pending a decision either from the Commission or from the Court of Justice.

17

In the light of those considerations, the Tribunal de grande instance de Dinan decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Can scallops caught in the circumstances described be regarded as imported products, notwithstanding the French legislation which applies to fish catches the law of the flag of the fishing vessel?

Is the validity of the Order of 19 March 1980, which prohibits the landing of scallops during the close season, affected by the provisions of the Treaty of Maastricht, which prohibits measures having an equivalent effect to quantitative restrictions on imports?

The questions

18

It should be noted at the outset, first, that in proceedings under Article 234 EC the Court does not have jurisdiction to rule on the compatibility of a national measure with Community law. However, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it (see, in particular, Case 6/64 Costa [1964] ECR 585, at p. 593, and Case C-17/00 De Coster [2001] ECR I-9445, paragraph 23).

19

Second, in order to provide a helpful answer to the national court which has referred a question to it for a preliminary ruling, the Court may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (Case 35/85 Tissier [1986] ECR 1207, paragraph 9, and Case C-107/98 Teckal [1999] ECR I-8121, paragraph 39).

In order to provide an interpretation which will be of assistance to the national court, it must be observed that the Community fisheries legislation is relevant for the purposes of deciding the case in the main proceedings.

21

The second question referred for a preliminary ruling, which must be examined first, should therefore be construed as asking, in essence, whether Community fisheries law precludes national legislation such as that at issue in the main proceedings which prohibits, during a given period, the landing, on part of the coastline of the Member State concerned, of scallops caught within the territorial waters of another Member State.

Observations submitted to the Court

22

The Commission, which has alone proposed a reply to the second question, submits, first, that the French legislation at issue in the main proceedings, in so far as it lays down a general prohibition on landing scallops, must be regarded as a measure having an equivalent effect to a quantitative restriction on imports within the meaning of Article 28 EC.

23

It submits, next, that, in that connection, Member States cannot rely on the derogations provided by Article 30 EC, since their residual competence in respect of technical measures for the conservation of fishing resources relates solely, according to the Community legislation, to the conservation of strictly local stocks which are only of interest to the Member State concerned and to technical measures which go beyond the minimum requirements of the Community legislation and concern only the fishermen of that Member State.

24

The Commission further contends that, since the adoption of Regulation No 3760/92, the Member States may take measures only in waters coming under their sovereignty or within their jurisdiction.

25

The Commission also maintains that the Order, because it was not notified to the Commission, has, since the adoption of Regulation No 171/83, suffered from a substantial procedural defect rendering it inapplicable to third parties.

Finally, the Commission argues that a general and absolute prohibition on unloading in French ports during the seasonal fishing prohibition cannot be regarded either as a measure necessary to secure compliance with the latter prohibition or as an indispensable measure for the purposes of providing effective protection for the health and life of animals, since those objectives could be attained just as effectively by measures having less restrictive effects on intra-Community trade.

Findings of the Court

27

Article 40 of the EC Treaty (now, after amendment, Article 34 EC) provides that Member States are to develop a common agricultural policy, during the transitional period, and are to bring it into force by the end of that period at the latest, in order to attain the objectives set out in Article 39 of the EC Treaty (now Article 33 EC).

It must be borne in mind that, by virtue of Article 102 of the Act concerning the conditions of accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the adjustments to the Treaties, the power to adopt measures for the protection of the biological resources of the sea has since 1 January 1979 been vested exclusively in the Council, acting on a proposal from the Commission (Case 24/83 Gewiese and Mehlich [1984] ECR 817, paragraph 5).

29

Furthermore, the Court has already held that once the Community has, pursuant to Article 40 of the EC Treaty, adopted legislation establishing an organisation of the market in a given sector, the Member States are under an obligation to refrain from taking any measure which might undermine or create exceptions to it (Case 111/76 Van den Hazel [1977] ECR 901, paragraph 13, and Case C-44/94 Fishermen's Organisations and Others [1995] ECR I-3115, paragraph 52).

30

By the adoption of Council Regulation (EEC) No 100/76 of 19 January 1976 on the common organisation of the market in fishery products (OJ 1976 L 20, p. 1), which was repealed by Council Regulation (EEC) No 3796/81 of 29 December 1981 (OJ 1981 L 379, p. 1), the Community introduced a common agricultural policy for the fishing industry. Furthermore, the Council laid down, by Regulation No 101/76, a common structural policy in that sector.

31

Admittedly, the existence of a common organisation of the market does not prevent the competent authorities of a Member State from adopting national measures on the terms provided for by Community legislation forming part of that organisation (Fishermen's Organisations and Others, cited above, paragraph 53).

32

In that regard, it should be pointed out, as has been observed in paragraph 7 of this judgment, that the Community has adopted numerous measures for the management of the stocks of fishery products, in particular by establishing catch quotas for those products, and has to a large extent regulated the fishery market.

33

On the other hand, it has not adopted any specific measure for the management of scallops stocks.

34

However, as may be seen from the first and second indents of Article 10(1) of Regulation No 3760/92, Member States may take measures for the conservation and management of resources in waters under their sovereignty or jurisdiction, provided that they involve strictly local stocks which are only of interest to fishermen from the Member State concerned and that they apply solely to the fishermen from that Member State.

35

It is also clear from Article 46(1) of Regulation No 850/98, and from that article as amended by Regulation No 1298/2000, that a Member State is empowered to take measures for the conservation and management of fishery stocks only if they concern strictly local stocks which are of interest only to that Member State or which are in the form of details or conditions or detailed arrangements designed to limit catches by technical measures, provided that such measures apply, according to the provision as set out in Regulation No 850/98, solely to the fishermen of the Member State concerned, and are compatible with Community law and in conformity with the common fisheries policy, and, according to the provision as amended by Regulation No 1298/2000, solely to fishing vessels flying the flag of the Member State concerned and registered in the Community or, in the case of fishing activities which are not conducted by a fishing vessel, to persons established in the Member State concerned.

36

Thus, it follows from the above that the competence of the Member States to take measures for the conservation and management of fishery stocks is part of a specific framework. The measures which Member States are empowered to adopt in that regard must concern strictly local stocks or only the fishermen of the Member State concerned or fishing vessels flying the flag of that State and may apply only to waters coming under its sovereignty or jurisdiction.

37

The national provision at issue in the main proceedings exceeds the competence of the Member State concerned since, first, it concerns neither strictly local stocks nor is it in the form of conditions or detailed arrangements designed to limit catches by technical measures, and, second, it prohibits the landing of fish caught in waters which do not come under the sovereignty or jurisdiction of the Member State concerned.

38

Therefore, the reply to be given to the second question, as reformulated, must be that Community fisheries law precludes national legislation such as that at issue in the main proceedings which prohibits, during a given period, the landing, on part of the coastline of the Member State concerned, of scallops caught within the territorial waters of another Member State.

39

Having regard to the answer given to the second question, it is not necessary to answer the first question.

Costs

40

The costs incurred by the French and Netherlands Governments and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Tribunal de grande instance de Dinan by judgment of 28 June 2001, hereby rules:

Puissochet

Gulmann

Macken

Colneric

Cunha Rodrigues

Delivered in open court in Luxembourg on 16 January 2003.

Registrar

President of the Sixth Chamber

Language of the case: French.