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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Vieira v Commission & Ors (External relations) [2005] EUECJ C-254/03 P (13 January 2005) URL: https://www.bailii.org/eu/cases/EUECJ/2005/C25403_P.html Cite as: [2005] EUECJ C-254/03 P, [2005] EUECJ C-254/3 P |
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JUDGMENT OF THE COURT (First Chamber)
13 January 2005 (1)
(Appeal - Fisheries - Fisheries agreement with Argentina - Community financial aid - Reduction)
In Case C-254/03 P,APPEAL under Article 56 of the Statute of the Court of Justice brought on 13 June 2003, Eduardo Vieira SA, represented by J.-R. García-Gallardo Gil-Fournier and D. Domínguez Pérez, abogados,appellant,
the other party to the proceedings being:Commission of the European Communities, represented by S. Pardo Quintillán, acting as Agent, and J. Rivas-Andres and J. Gutiérrez Gisbert, avocats, with an address for service in Luxembourg,defendant at first instance,
THE COURT (First Chamber),
after hearing the Opinion of the Advocate General at the sitting on 16 September 2004,
gives the following
-1. The Parties shall create suitable conditions for the establishment in Argentina of undertakings using capital originating in one or more Member States of the Community and the creation of joint enterprises and joint ventures in the fisheries sector between Argentinian and Community shipowners with the aim of jointly exploiting and, where appropriate, jointly processing Argentinian fishery resources under the conditions laid down in Protocol I and Annexes I and II. 2. Argentina shall grant the undertakings referred to in paragraph 1 access to the fishing opportunities set out in Protocol I in accordance with the provisions of Annexes I to IV.-
-The Parties shall select the projects for the joint ventures, Community undertakings established in Argentina and joint enterprises provided for in Article 5, which shall be authorised to take the catch quantities specified in Protocol I. The projects shall be selected in accordance with the methods and criteria set out in Annex III.-
-In order to encourage the establishment of the undertakings provided for in Article 5, the projects selected by the Parties pursuant to Article 6 shall be eligible for financial assistance in accordance with Protocol I.-
-The Joint Committee shall evaluate the projects in accordance basically with the following criteria:(a) technology appropriate to the proposed fishing operations; (b) species and fishing zones; (c) modernisation of vessels; (d) total investment in the project; (e) investment in onshore plant; (f) previous experience of Community shipowner and any Argentinian partner in the fisheries sector.-
-1. ... the Community shall provide financial assistance for the formation of joint enterprises ... This financial assistance ... shall be paid to the Community owner to cover part of his financial contribution to the establishment of a joint enterprise ... and/or to remove the vessels in question from the Community register. 2. With a view to encouraging the establishment and development of joint enterprises, the Community shall grant to joint enterprises established in Argentina financial support of fifteen (15) per cent of the amount paid to the Community owner ... - 4. The provisions governing applications for and the grant of Community assistance to the Community owner as referred to in paragraph 1 shall be laid down in accordance with the relevant Community rules in force.
...-
Community legislation on joint enterprises in the fisheries sector
-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 ...-.
-18 Within the framework of the fisheries agreement, the Spanish undertaking [SAEV] proposed a project to create a joint enterprise called Vieira Argentina, SA (hereinafter -VASA-), comprising SAEV and an Argentinian shipowner. The project proposed fishing for the species Patagonian toothfish. The Community vessel Ibsa Cuarto, subsequently renamed Vieirasa XII, was to be transferred to the project. 19 By letter of 13 October 1994, the Commission informed SAEV that the project could not be considered, since the species referred to was not among the species covered by the fisheries agreement. 20 By letter of 20 October 1994, the Spanish authorities then sent the Commission documents declaring a change in the catch plan which the appellant had sent to them. That plan referred to catching, within the Argentinian Exclusive Economic Zone (EEZ), surplus species mentioned in Protocol I to the fisheries agreement: Patagonian grenadier, roughhead grenadier and Patagonian rockcod. 21 By letter of 8 December 1994, the Commission informed SAEV that its project had not been recommended by the Joint Committee of 5 and 6 December 1994, since the Argentinian partner insist[ed] on retaining the Patagonian toothfish (a species not covered by the fisheries agreement) in the catch plan of the project presented to the Argentinian authorities. 22 By fax of 12 December 1994, SAEV informed the Commission that the Argentinian partner had -renounced the plan to fish for Patagonian toothfish, in a letter sent to the Argentinian Directorate-General of fisheries and agriculture on 24 November 1994-. 23 The Argentinian authorities approved the project in Resolution No 14/95 of 14 July 1995 and issued the Vieirasa XII with a fishing permit for surplus species, under which the vessel could catch 1 204 tonnes of roughhead grenadier, [1 204 tonnes of Patagonian rockcod], 301 tonnes of Patagonian grenadier and 301 tonnes of other species. 24 By letter of 18 July 1995, the joint enterprise VASA applied to the Argentinian authorities for a supplementary permit, for Patagonian toothfish, to be added to the fishing permit granted on the basis of the fisheries agreement. 25 By decision of 25 July 1995 (hereinafter -the decision to grant assistance --) the Commission approved the grant of financial aid to the project proposed by SAEV (project ARG/ESP/SM/26-94) -under the conditions established by the provisions laid down in the [fisheries] agreement ..., the applicable Community law and the provisions in the Annexes- (Article 1). 26 Annex I to the decision to grant assistance of 25 July 1995 establishes the financial aid granted to SAEV, in the sum of ECU 1 881 936. That annex also sets the amount of aid granted to the joint enterprise VASA, which receives aid equal to 15% of the amount granted to SAEV, that is, ECU 282 290.4. The total aid for the project is thus ECU 2 164 226.4. 27 Annex I to the decision to grant assistance of 25 July 1995 provides:
-The information contained in the present annex may not be altered without prior authorisation by the Argentinian authorities and the Commission.-
28 By resolution of 14 November 1995, the Argentinian authorities granted the Vieirasa XII a definitive fishing permit which reduced the tonnage of surplus species to 750 tonnes of roughhead grenadier, 230 tonnes of Patagonian rockcod and 230 tonnes of Patagonian grenadier and which included a new fishing permit for 1 800 tonnes of Patagonian toothfish. 29 On 27 June 1996, the Commission paid the first instalment (80%) of the aid. 30 The vessel Vieirasa XII permanently left Argentinian waters on 5 July 1996 in order to fish in international waters. 31 SAEV submitted a request for payment of the balance of the aid on 25 February 1997. 32 By letter of 21 April 1998, the Commission informed SAEV that the procedure for reducing Community aid could be initiated in the absence of a satisfactory reply from the undertaking. In that letter, the Commission stated that the departure of the vessel from Argentinian waters on 5 July 1996 constituted an infringement of Article 5(1) of the fisheries agreement and Article 3(1) of Protocol I to that agreement, since joint enterprises are established with the aim of exploiting and, where appropriate, processing Argentinian fishery resources. 33 On 19 May 1998, SAEV submitted its observations. In that letter, it set out the reasons on the basis of which it considered that the conditions for granting financial aid had not been infringed. 34 By letter of 9 June 1999, the Commission informed SAEV that it was of the opinion that -the explanations set out in [the] letter of 19 May 1998 [did] not make it possible to conclude that the relevant Community law was complied with, but [confirmed] that the vessel left Argentinian waters on 5 July 1996-. The Commission explained that it had therefore -decided to reduce the aid granted to that project-. The letter set out the method for calculating the reduction and concluded that the Commission should be reimbursed the amount of EUR 355 477. The Commission stated that, in the absence of agreement by SAEV to the proposed solution, it would have to -continue the procedure for reduction and recovery in progress-. 35 That letter was followed by an exchange of correspondence between SAEV (letters of 16 July 1999, 21 December 1999 and 5 April 2000) and the Commission services (letters of 23 September 1999 and 28 February 2000). Meetings also took place between representatives of SAEV and the Commission services. 36 By letter of 14 September 2000, the Commission informed SAEV that a new calculation had led it to consider that an amount of EUR 419 446 would have to be repaid. 37 SAEV, which considered that the Commission had unlawfully failed to pay it the balance of the Community aid, gave formal notice to the Commission to do so by letter of 21 September 2000. 38 By letter of 16 October 2000, the Commission informed SAEV that the procedure for reducing the aid granted to the Community shipowner was in progress and that a decision in the matter would be taken after consultation with the Standing Committee for the Fishing Industry. 39 By [the contested decision], addressed to the Kingdom of Spain and SAEV, the Commission reduced the financial aid which had been granted to that undertaking. Article 2 of the decision requires SAEV to reimburse the amount of EUR 419 446. The decision contains no determination on a possible reduction in the aid granted to the joint enterprise VASA. 40 The grounds for [the contested decision] are as follows: -2. Pursuant to Article 1 of [the] decision (decision to grant assistance of 25 July 1995), the aid was granted under conditions established by the provisions laid down by the ... fisheries agreement, the applicable Community legislation and the provisions in the Annexes ... 3. The ... fisheries agreement, and in particular Article 5(1) thereof, states that the creation of joint enterprises in Argentina has the aim of exploiting Argentinian fishery resources under the conditions laid down in Protocol I and Annexes I and II; under Article 6, joint enterprises are authorised to take the catch quantities specified in Protocol I. 4. Point 3.2.1 of Part B of the application for Community aid completed and signed by [SAEV] expressly states that the Commission only grants financial aid to projects which intend to exploit fishery resources in waters which are under the sovereignty or jurisdiction of the third country taking part ... 5. - 6. Consequently, the granting of Community aid for the creation of the joint enterprise at issue applied only to catches carried out by the fishing vessel Ibsa Cuarto, of the species mentioned in the Annexes to the decision (aid decision of 25 July 1995), that is to say, roughhead grenadier, Patagonian grenadier and Patagonian rockcod, and located in Argentinian waters. 7. As from 5 July 1996, the vessel Ibsa Cuarto ceased its fishing activities in the Argentinian EEZ and began to fish in international waters for Patagonian toothfish, without prior notification to the Commission of that fact and without having obtained its authorisation.- 41 After pointing out that it learned of that situation on 2 July 1997, the Commission concludes, in point 9 of [the contested decision], that SAEV had not complied with the conditions for granting financial aid. It goes on, in points 10 to 13 of the decision, to calculate the reduction of the aid in question. It first states that SAEV is entitled, under the scale of assessment laid down in Regulation No 3699/93, to aid of EUR 688 187 for the definitive transfer of the Vieirasa XII to the joint enterprise. The balance of the aid granted it by the decision to grant assistance of 25 July 1995 is therefore EUR 1 193 749 (1 881 936 - 688 187). Since the Vieirasa XII was active for only 12 months (of the 36 months stipulated) in Argentinian waters, the Commission concludes that SAEV is entitled to only one third of the EUR 1 193 749 envisaged, that is to say, EUR 397 916. The total amount of reduced aid is therefore, according to the Commission, EUR 1 086 103 (397 916 + 688 187). SAEV, which had already received 80% of the aid (EUR 1 505 549) is therefore required to reimburse EUR 419 446 to the Commission.-
- declare the present appeal admissible; - set aside the contested judgment; - order the Commission to pay all the costs of the proceedings before the Court of Justice as well as those incurred at first instance.
- declare that the first plea, the second part of the second plea and the third and fifth pleas on appeal are manifestly inadmissible; - dismiss the appeal in its entirety, or, as the case may be, that part thereof declared admissible; - order the appellant to pay the costs of the appeal.
- breach of the fisheries agreement as regards the legal basis of the contested decision; - breach of the fisheries agreement as regards the role of the Joint Committee and the Argentinian authorities; - breach of the fisheries agreement as regards application of Article 44 of Regulation No 4028/86 in the course of the aid reduction procedure; - breach of the fisheries agreement as regards application of Regulation No 3699/93 when the amount of the reduction in the aid was calculated; - breach of the fisheries agreement as regards force majeure; - breach of the fisheries agreement as regards the need to obtain the Commission-s authorisation to leave the Argentinian fishing zone. The first plea in lawArguments of the parties
Findings of the Court - Admissibility of the plea in law
- The validity of the plea in law
The second plea in law Arguments of the parties
Findings of the Court
The third plea in lawArguments of the parties
Findings of the Court
The fourth plea in lawArguments of the parties
Findings of the Court
The sixth plea in lawArguments of the parties
Findings of the Court
The fifth plea in lawArguments of the parties
Findings of the Court
1 - Language of the case: Spanish.