1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 16 NOVEMBER 1985, THE KINGDOM OF DENMARK BROUGHT AN ACTION UNDER THE FIRST PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION DECISION 85/451 OF 28 AUGUST 1985 CONCERNING THE CLEARANCE OF THE ACCOUNTS PRESENTED BY THE KINGDOM OF DENMARK IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1981 ( OFFICIAL JOURNAL, L 627, P . 10 ) IS VOID IN SO FAR AS THAT DECISION REFUSES TO ACCEPT AS CHARGEABLE TO COMMUNITY FUNDS AN AMOUNT OF DKR 5 411 429 IN RESPECT OF INTERVENTION RELATING TO THE WITHDRAWAL FROM THE MARKET OF CERTAIN SPECIES OF FISH AND DKR 2 153 527.71 IN RESPECT OF REFUNDS ON THE EXPORT OF MACKEREL TO NON-MEMBER COUNTRIES .
2 THE DANISH GOVERNMENT PUTS FORWARD THE FOLLOWING SUBMISSIONS :
A PROPOSAL BY THE COMMISSION CONSTITUTES NEITHER APPLICABLE COMMUNITY LAW NOR A BODY OF COMMUNITY RULES WITHIN THE MEANING OF REGULATION NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1970 ( I ), P . 218 );
THERE IS NO RELATIONSHIP BETWEEN THE RULES ON QUOTAS AND THE CORRECT UTILIZATION OF THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS WITHIN THE MEANING OF REGULATION NO 729/70;
THE INFRINGEMENT OF ARTICLE 5 OF REGULATION NO 729/70 PREVENTS THE COMMISSION FROM PUTTING FORWARD, IN 1985, A NEW LEGAL CONCEPT IN REGARD TO THE CLEARANCE OF ACCOUNTS FOR 1981;
THE STATEMENT OF ACCOUNTS IS INCORRECT INASMUCH AS THE COMMISSION DID NOT TAKE INTO CONSIDERATION THE QUANTITIES WITHDRAWN OR EXPORTED BEFORE THE EXHAUSTION OF THE QUOTAS TO WHICH IT REFERS .
3 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
4 IN ITS FIRST SUBMISSION, THE DANISH GOVERNMENT CLAIMS ESSENTIALLY THAT THE FISHING QUOTAS ON WHICH THE COMMISSION BASED ITS REFUSAL TO AUTHORIZE COMMUNITY FINANCING OF THE REFUNDS AND INTERVENTION AT ISSUE ARE NOT LEGALLY BINDING BECAUSE THE POWER TO ADOPT COMMUNITY MEASURES IN REGARD TO THE CONSERVATION OF MARITIME RESOURCES BELONGS TO THE COUNCIL, AND THAT NO PROCESS OF COOPERATION FULFILLING THE REQUIREMENTS OF THE COURT' S CASE-LAW TOOK PLACE IN 1981 TO REMEDY THE ABSENCE OF ACTION BY THE COUNCIL .
5 THE COMMISSION REPLIES THAT IN THE SPECIAL CIRCUMSTANCES OBTAINING IN 1981 AND HAVING REGARD TO THE COURT' S CASE-LAW, IT WAS JUSTIFIED IN ASKING THE MEMBER STATES TO COMPLY WITH THE PROPOSALS WHICH IT HAD MADE TO THE COUNCIL FOR 1981 CONCERNING, IN REGARD TO CERTAIN FISH STOCKS, THE FIXING OF THE TOTAL PERMITTED CATCH AND THE DIVISION THEREOF AMONG THE MEMBER STATES .
6 IN ORDER TO ASSESS THE FIRST SUBMISSION, IT MUST BE CONSIDERED WHETHER THERE WERE ANY COMMUNITY RULES IN 1981 ON THE CONSERVATION OF MARITIME RESOURCES WHICH LIMITED CATCHES .
7 THE ESSENTIAL POINT ABOUT THE SITUATION IN 1981 IS THAT THE COUNCIL, WHICH ALONE HAD THE POWER SINCE 1 JANUARY 1979 UNDER ARTICLE 102 OF THE ACT OF ACCESSION OF 1972 TO ADOPT, ON THE PROPOSAL OF THE COMMISSION AND IN THE CONTEXT OF THE COMMON FISHERIES POLICY, MEASURES DESIGNED TO ENSURE THE CONSERVATION OF THE RESOURCES OF THE SEA, DID NOT ADOPT ANY SUCH MEASURES .
8 COUNCIL DECISION 80/993 OF 28 OCTOBER 1980, BASED ON THE TREATIES, CONCERNING FISHERY ACTIVITIES IN WATERS UNDER THE SOVEREIGNTY OR JURISDICTION OF MEMBER STATES AND ADOPTED ON A TEMPORARY BASIS PENDING THE ADOPTION OF PERMANENT COMMUNITY MEASURES ( OFFICIAL JOURNAL, L 298, P . 38 ), LAID DOWN INTERIM MEASURES APPLICABLE UNTIL 20 DECEMBER 1980 . THOSE MEASURES PROVIDED THAT THE MEMBER STATES SHOULD CONDUCT THEIR FISHING ACTIVITIES IN SUCH A WAY AS TO TAKE INTO ACCOUNT THE TOTAL ALLOWABLE CATCHES ( TACS ) AND THE PART THEREOF MADE AVAILABLE TO NON-MEMBER COUNTRIES UNDER AGREEMENTS OR ARRANGEMENTS MADE WITH THEM, AS CONTAINED IN COUNCIL REGULATION NO 754/80 OF 26 MARCH 1980 CONCERNING, FOR CERTAIN FISH STOCKS OCCURRING IN THE COMMUNITY FISHING ZONE, THE FIXING FOR 1980 OF THE TOTAL ALLOWABLE CATCHES, THE SHARE AVAILABLE FOR THE COMMUNITY AND THE MEANS OF MAKING THE CATCHES ( OFFICIAL JOURNAL, L 84, P . 36 ) AND IN THE COMMISSION' S PROPOSALS OF 12 SEPTEMBER AND 24 OCTOBER 1980 .
9 AT ITS MEETING ON 15 TO 17 DECEMBER 1980 THE COUNCIL ADOPTED A DECLARATION IN THE MINUTES TO THE EFFECT THAT THE MEMBER STATES WOULD CONDUCT THEIR FISHING ACTIVITIES IN SUCH A WAY THAT THE CATCHES MADE BY THEIR SHIPS DURING THE INTERIM PERIOD WOULD TAKE INTO ACCOUNT THE TOTAL ALLOWABLE CATCHES SUBMITTED FOR 1981 BY THE COMMISSION TO THE COUNCIL IN ITS PROPOSALS OF 18 NOVEMBER AND 16 DECEMBER 1980 .
10 IN 1981 THE COMMISSION REPEATEDLY AMENDED ITS TAC PROPOSALS AND ULTIMATELY SUBMITTED TO THE COUNCIL ON 24 JULY 1981 A PROPOSAL FOR A REGULATION CONCERNING, FOR CERTAIN FISH STOCKS OCCURRING IN THE COMMUNITY FISHING ZONE, THE FIXING OF THE TOTAL ALLOWABLE CATCHES FOR 1981 AND THE SHARES AVAILABLE TO THE COMMUNITY, AND A PROPOSAL FOR A REGULATION CONCERNING THE ALLOCATION AMONG THE MEMBER STATES OF THE TOTAL CATCH POSSIBILITIES AVAILABLE TO THE COMMUNITY IN 1981 OF FISH STOCKS OR GROUPS OF STOCKS OCCURRING IN THE COMMUNITY FISHING ZONE .
11 IN A DECLARATION SUBMITTED TO THE COUNCIL ON 27 JULY 1981 ( OFFICIAL JOURNAL, C 224, P . 1 ) THE COMMISSION SET OUT THE POSITION RESULTING FROM THE ABSENCE OF AGREEMENT ON ITS PROPOSALS TO FIX THE TACS AND QUOTAS FOR 1981 . THE COMMISSION RECALLED THAT IT HAD CERTAIN RIGHTS AND DUTIES UNDER ARTICLE 155 OF THE TREATY, AS HAD BEEN CONFIRMED BY THE COURT INTER ALIA IN ITS JUDGMENT OF 5 MAY 1981 IN CASE 804/79 COMMISSION V UNITED KINGDOM (( 1981 )) ECR 1045 . IN VIEW OF THE OVERRIDING PUBLIC INTEREST AND AS A PRECAUTIONARY MEASURE, PENDING A FINAL DECISION BY THE COUNCIL, THE COMMISSION THEREFORE CALLED UPON ALL MEMBER STATES IN PURSUANCE OF THEIR RIGHTS AND DUTIES TO CONDUCT THEIR FISHING ACTIVITIES IN SUCH A WAY AS TO ENSURE COMPLIANCE WITH THE COMMISSION' S PROPOSALS . THE COMMISSION ALSO DECLARED THAT IT WAS DETERMINED TO USE ALL THE MEANS IN ITS POWER TO ENSURE THE COMPLIANCE BY MEMBER STATES WITH THOSE PROPOSALS, WHICH IT CONSIDERED IN THE CIRCUMSTANCES TO BE LEGALLY BINDING UPON THE MEMBER STATES .
12 IT IS APPARENT FROM THE MINUTES OF THE COUNCIL MEETING OF 27 JULY 1981 THAT THE COMMISSION' S DECLARATION WAS CHALLENGED BY THE COUNCIL' S LEGAL DEPARTMENT AND BY THE REPRESENTATIVES OF VARIOUS MEMBER STATES, AND THAT FINALLY THE COUNCIL AGREED TO DISCUSS THE TACS AND QUOTAS PROPOSED FOR 1981 AT ITS NEXT MEETING .
13 IN A LETTER DATED 28 JULY 1981 THE COMMISSION REMINDED THE MEMBER STATES OF ITS DECLARATION AND ADDED THAT IT BELIEVED IT WAS OBLIGED NOT MERELY TO APPROVE OR DISAPPROVE IN THE LIGHT OF ITS PROPOSALS NATIONAL MEASURES AS AND WHEN THEY MIGHT BE SUBMITTED TO IT, BUT ALSO TO REQUIRE ALL MEMBER STATES TO TAKE STEPS TO COMPLY WITH THOSE PROPOSALS . PENDING THE NEXT MEETING OF THE COUNCIL, THE COMMISSION INTENDED TO GIVE ITS APPROVAL TO CATCHES WHICH AMOUNTED TO NOT MORE THAN THREE-QUARTERS OF THE AMOUNT OF THE QUOTAS PROPOSED BY IT . THE COMMISSION CALLED UPON ALL MEMBER STATES TO INDICATE NOT LATER THAN 24 AUGUST 1981 THE MEASURES WHICH THEY PROPOSED TO TAKE IN ORDER TO ENSURE THAT THIS GENERAL RULE WAS RESPECTED IN THE INTERIM PERIOD .
14 DURING 1981, THE DANISH GOVERNMENT INFORMED THE COMMISSION OF PROVISIONS LIMITING THE FISHING OF VARIOUS SPECIES IN PARTICULAR AREAS . THE COMMISSION APPROVED SOME OF THOSE MEASURES AND IN REGARD TO OTHERS, IT REFERRED TO ITS PROPOSALS TO THE COUNCIL .
15 THE COURT HAS HAD OCCASION TO STATE THE APPLICABLE COMMUNITY LAW ON THE MATTER IN ITS PREVIOUS DECISIONS, MOST RECENTLY IN THE JUDGMENT OF 5 MAY 1981 REFERRED TO ABOVE . HOWEVER, THE SITUATION IN THIS CASE DIFFERS FROM THAT DESCRIBED IN THE SAID JUDGMENT INASMUCH AS THE COUNCIL DID NOT ADOPT AN INTERIM DECISION FOR 1981 AND ALL THAT IT DID WAS TO ADOPT THE DECLARATION IN THE MINUTES OF THE COUNCIL MEETING OF 15 TO 17 DECEMBER 1980 TO THE EFFECT THAT THE MEMBER STATES WOULD CONDUCT THEIR FISHING ACTIVITIES IN SUCH A WAY AS TO TAKE INTO ACCOUNT THE TOTAL ALLOWABLE CATCHES SUBMITTED FOR 1981 BY THE COMMISSION TO THE COUNCIL IN ITS PROPOSALS OF 18 NOVEMBER AND 16 DECEMBER 1980 .
16 THE COURT HELD IN ITS JUDGMENT OF 5 MAY 1981 ( CITED ABOVE ) THAT, WHERE THE COUNCIL HAD FAILED TO ACT, ARTICLE 5 OF THE TREATY REQUIRED MEMBER STATES TO FACILITATE THE ACHIEVEMENT OF THE COMMUNITY' S TASK AND TO ABSTAIN FROM ANY MEASURE WHICH MIGHT JEOPARDIZE THE ACHIEVEMENT OF THE AIMS OF THE TREATY . THAT PROVISION IMPOSED ON MEMBER STATES SPECIAL DUTIES OF ACTION AND ABSTENTION WHERE THE COMMISSION, IN ORDER TO MEET URGENT CONSERVATION NEEDS, HAD SUBMITTED TO THE COUNCIL PROPOSALS WHICH, ALTHOUGH THEY WERE NOT ADOPTED BY THE COUNCIL, REPRESENTED A BASIS FOR CONCERTED COMMUNITY ACTION . THE COURT ALSO DECLARED THAT THIS WAS A FIELD RESERVED TO THE POWERS OF THE COMMUNITY, WITHIN WHICH THE MEMBER STATES MIGHT HENCEFORTH ACT ONLY AS TRUSTEES OF THE COMMON INTEREST; MEMBER STATES COULD NOT, THEREFORE, IN THE ABSENCE OF APPROPRIATE ACTION ON THE PART OF THE COUNCIL, BRING INTO FORCE ANY INTERIM CONSERVATION MEASURES WHICH MIGHT BE REQUIRED BY THE SITUATION EXCEPT AS PART OF A PROCESS OF COLLABORATION WITH THE COMMISSION . THE MEMBER STATES HAD A DUTY NOT TO LAY DOWN NATIONAL CONSERVATION MEASURES INCOMPATIBLE WITH THE OBJECTIONS, RESERVATIONS OR CONDITIONS WHICH MIGHT BE FORMULATED BY THE COMMISSION .
17 THE COURT THUS ACCEPTED THAT WHERE THE COUNCIL HAD FAILED TO ADOPT THE CONSERVATION MEASURES NECESSARY TO PRESERVE FISHERY RESOURCES, SUCH MEASURES, DESIGNED TO MEET URGENT NEEDS, MIGHT BE AGREED UPON BY MEANS OF A PROCESS OF COOPERATION BETWEEN THE MEMBER STATES AND THE COMMISSION IN ORDER TO ENABLE THE COMMUNITY TO MEET ITS RESPONSIBILITIES .
18 IT IS COMMON GROUND THAT NO SUCH PROCESS OF COOPERATION WAS INITIATED IN 1981 BETWEEN THE KINGDOM OF DENMARK AND THE COMMISSION IN REGARD TO THE FISH AT ISSUE SINCE THE KINGDOM OF DENMARK DID NOT REPLY TO THE COMMISSION' S CALL TO ADOPT THE MEASURES NECESSARY TO ENSURE COMPLIANCE WITH ITS PROPOSALS . IN THOSE CIRCUMSTANCES, AND WITHOUT ITS BEING NECESSARY TO RULE ON THE LEGAL CONSEQUENCES OF THAT ABSENCE OF COOPERATION ON THE PART OF A MEMBER STATE, IT MUST BE HELD THAT THE PROPOSALS UNILATERALLY MADE BY THE COMMISSION CONCERNING THE FISHING QUOTAS TO BE ALLOCATED TO THE KINGDOM OF DENMARK CANNOT BE REGARDED AS COMMUNITY RULES .
19 FURTHERMORE, AS THE COURT HAS DECIDED ON NUMEROUS OCCASIONS, COMMUNITY LEGISLATION MUST BE CERTAIN AND ITS APPLICATION MUST BE FORESEEABLE BY THOSE SUBJECT TO IT . THAT REQUIREMENT OF LEGAL CERTAINTY MUST BE OBSERVED ALL THE MORE STRICTLY IN THE CASE OF RULES LIABLE TO ENTAIL FINANCIAL CONSEQUENCES, IN ORDER THAT THOSE CONCERNED MAY KNOW PRECISELY THE EXTENT OF THE OBLIGATIONS WHICH THEY IMPOSE ON THEM .
20 IT FOLLOWS FROM THE FOREGOING THAT IN THE PRESENT CASE, THERE WERE IN 1981 NO RULES OF COMMUNITY LAW WITHIN THE MEANING OF ARTICLES 2 AND 3 OF REGULATION NO 729/70, FAILURE TO COMPLY WITH WHICH COULD JUSTIFY THE COMMISSION' S REFUSAL TO CHARGE TO THE FUND THE EXPORT REFUNDS AND INTERVENTION WHICH ARE THE SUBJECT OF THIS ACTION .
21 MOREOVER, IT HAS NEVER BEEN CONTESTED THAT THE DANISH GOVERNMENT ACTUALLY INCURRED THE EXPENDITURE CONCERNED . COMMISSION DECISION 85/451 OF 28 AUGUST 1985 MUST THEREFORE BE DECLARED VOID TO THE EXTENT SOUGHT WITHOUT ITS BEING NECESSARY TO CONSIDER THE APPLICANT' S OTHER SUBMISSIONS AND ARGUMENTS .
COSTS
22 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTIES SHOULD BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS,
THE COURT
HEREBY :
( 1 ) DECLARES VOID COMMISSION DECISION 85/451 OF 28 AUGUST 1985 ON THE CLEARANCE OF THE ACCOUNTS PRESENTED BY THE KINGDOM OF DENMARK IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1981, IN SO FAR AS THE COMMISSION HAS FAILED TO CHARGE TO THE FUND THE SUMS OF DKR 5 411 429 IN RESPECT OF FINANCIAL COMPENSATION RELATING TO THE WITHDRAWAL FROM THE MARKET OF CERTAIN SPECIES OF FISH AND DKR 2 153 527.71 IN RESPECT OF REFUNDS ON EXPORTS OF MACKEREL TO NON-MEMBER COUNTRIES;
( 2 ) ORDERS THE COMMISSION TO PAY THE COSTS .
