Parties

In Case C-236/05,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 30 May 2005,

Commission of the European Communities, represented by K. Banks, acting as Agent, with an address for service in Luxembourg,

applicant,

United Kingdom of Great Britain and Northern Ireland, represented by S. Nwaokolo, acting as Agent, and by D.J. Rhee, Barrister,

defendant,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, A. Tizzano (Rapporteur), A. Borg Barthet, J. Malenovský and A. Ó Caoimh, Judges,

Advocate General: M. Poiares Maduro,

Registrar: R. Grass,

having regard to the written procedure,

gives the following

Grounds

1. By its application the Commission of the European Communities seeks a declaration that, by communicating with considerable delay the data required by the first and third indents of Article 19i of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 L 261, p. 1), as last amended by Council Regulation (EC) No 1954/2003 of 4 November 2003 (OJ 2003 L 289, p. 1) (‘Regulation No 2847/93’), the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that regulation.

‘Each Member State shall inform the Commission, by computerised means in accordance with the procedures laid down in Regulation (EC) No 109/94 [of 19 January 1994 concerning the fishing vessel register of the Community], of the aggregate data for the fishing effort deployed:

– in the previous month for each fishing area concerned for demersal species, before the 15th of each month;

…

– in the previous quarter for each fishing area referred to in Article 19a for pelagic species, before the end of the first month of each calendar quarter.’

The pre-litigation procedure

The action

Admissibility of the action

Alteration of the subject-matter of the action

10. In that connection it must be recalled, first of all, that according to settled case-law the subject-matter of an action brought under Article 226 EC is determined by the Commission’s reasoned opinion (see Case C-29/90 Commission v Greece [1992] ECR I-1971, paragraph 12, and Case C-280/89 Commission v Ireland [1992] ECR I-6185, paragraph 7), so that the action must be based on the same grounds and pleas as the reasoned opinion (see Case C-456/03 Commission v Italy [2005] ECR I-5335, paragraph 35 and the case-law cited, and Case C-33/04 Commission v Luxembourg [2005] ECR I-10629, paragraph 36).

11. Second, the Court has also stated that that requirement cannot be extended, however, so as to mean that in every case the statement of the complaints set out in the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings as defined in the reasoned opinion has not been extended or altered (see Case C-433/03 Commission v Germany [2005] ECR I-6985, paragraph 28, and Case C-484/04 Commission v United Kingdom [2006] ECR I-0000, paragraph 25).

12. In particular, the Court has held that the subject-matter of the dispute may be extended to events which took place after the reasoned opinion was delivered in so far as they are of the same kind and constitute the same conduct as the events to which the opinion referred (see Case 42/82 Commission v France [1983] ECR 1013, paragraph 20; Case C-113/86 Commission v Italy [1988] ECR 607, paragraph 11; and Case C-221/04 Commission v Spain [2006] ECR I-0000, paragraph 28).

13. It must be held that in this case the subject-matter of the action has not changed in the course of these proceedings.

14. Both in the operative part of the reasoned opinion and in the forms of order sought in the application, the Commission’s complaint is that the United Kingdom has persistently failed to fulfil its obligations by sending the data required by the first and third indents of Article 19i of Regulation No 2847/93 late.

15. Furthermore, in its application the Commission drew attention to the fact that the failure to fulfil obligations persisted up to the time when this action was brought, since the United Kingdom Government has still not communicated almost all of the data relating to 2004 and any of the data relating to 2005.

16. It follows that the Commission’s action concerns not specific acts relating to particular periods, but continuous and systematic failure of the United Kingdom to fulfil its obligation to communicate the relevant data within the time-limit provided for in Regulation No 2847/93.

17. Consequently, the subject-matter of the dispute in this case is the failure of the United Kingdom authorities to comply with the time-limits mentioned above, as evidenced by the continuous delays, and without there being any need to exclude events which took place after the reasoned opinion (Commission v Italy, paragraph 13).

18. The first plea of inadmissibility raised by the United Kingdom must therefore be dismissed.

Plea that the action is devoid of purpose

19. The United Kingdom Government submits that it has complied with the reasoned opinion by communicating all the data required before the date fixed by that opinion, and that therefore the Commission was not entitled to bring these proceedings.

21. In this case, it must be observed that, as set out in paragraph 16 of this judgment, the alleged infringement by the United Kingdom consists in the fact that the data required by the first and third indents of Article 19i of Regulation No 2847/93 was continuously and systematically sent late.

22. It is apparent that the United Kingdom has not remedied the failure to fulfil obligations thus described by communicating before the date specified in the reasoned opinion the data required by Regulation No 2847/93 mentioned therein, since those communications of data were effected after the time-limits laid down by Regulation No 2847/93.

24. In the light of the foregoing, the second plea of inadmissibility must also be dismissed, and the Commission’s action must therefore be declared admissible.

The merits of the action

25. The Commission alleges that the United Kingdom provided the data required by the first and third indents of Article 19i of Regulation No 2847/93 with considerable delay, communication of the data having been made as follows:

– for 1999, 2000 and 2001: the data relating to those years was not sent until 14 January 2002, with the exception of the data for February, March, April and May 1999, sent on 9 June 1999, and the data relating to the first 10 months of 2001, sent on 29 November 2001;

– for 2002: except in five cases, the data relating to demersal species was also sent late;

– for 2003: the data was not sent until 29 March 2004;

– for 2004: only some data was sent to the Commission, with an average delay of 23 days for pelagic species and 48 days for demersal species;

– for 2005: on the date the action was brought no data had yet been sent to the Commission.

26. The United Kingdom Government does not deny the late communication of data thus described.

27. It argues, however, that those delays are due to operating difficulties. In particular, as regards the communication of data relating to 2004 and 2005, those difficulties arose as a result of a change in the reporting regime following the entry into force of Regulation No 1954/2003.

29. The United Kingdom cannot therefore rely on operating difficulties in order to avoid obligations arising from Community law.

30. In light of the foregoing, it must be held that by not communicating in time the data required by the first and third indents of Article 19i of Regulation No 2847/93 the United Kingdom has failed to fulfil its obligations under that regulation.

Costs

31. 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. As the Commission applied for costs and the United Kingdom has been unsuccessful, the latter must be ordered to pay the costs.

Operative part

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

1. Declares that by not communicating in time the data required by the first and third indents of Article 19i of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as last amended by Council Regulation (EC) No 1954/2003 of 4 November 2003, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that regulation;