Minister for Agriculture Food and the Marine and Sea Fisheries Protection Authority (Common fisheries policy - Recording of catches and fishing effort - Judgment) [2022] EUECJ C-564/20 (10 February 2022)

Judgment This reference for a preliminary ruling concerns the interpretation of Article 33(2)(a) and Article 34 of Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009 L 343, p. 1), as amended by Regulation (EU) 2015/812 of the European Parliament and of the Council of 20 May 2015 (OJ 2015 L 133, p. 1) (‘Regulation No 1224/2009’). The request has been made in proceedings between, on the one hand, PF and MF and, on the other hand, the Minister for Agriculture, Food and the Marine (Ireland) (‘the Minister’) and the Sea Fisheries Protection Authority (SFPA) (Ireland) concerning the Minister’s decision to prohibit the fishing of nephrops norvegicus (‘nephrops’) in the fishing area, known as Functional Unit 16 (‘FU16’), located on the Porcupine Bank off the west coast of Ireland. Legal context Regulation (EU) No 1 380/2013 Article 2(1) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ 2013 L 354, p. 22), which sets out the objectives of the common fisheries policy (‘the CFP’), is worded as follows: ‘The CFP shall ensure that fishing and aquaculture activities are environmentally sustainable in the long-term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies.’ Regulation No 1 224/2009 Article 5(5) of Regulation No 1224/2009, entitled ‘General principles’, provides: ‘In each Member State, a single authority shall coordinate the control activities of all national control authorities. It shall also be responsible for coordinating the collection, treatment and certification of information on fishing activities and for reporting to, cooperating with and ensuring the transmission of information to the Commission, the Community Fisheries Control Agency established in accordance with Regulation (EC) No 768/2005 …, other Member States and, where appropriate, third countries.’ Article 9(1) of Regulation No 1224/2009, entitled ‘Vessel monitoring system’, provides: ‘Member States shall operate a satellite-based vessel monitoring system for effective monitoring of fishing activities of the fishing vessels flying their flag wherever those vessels may be and of fishing activities in the Member States’ waters.’ Article 14(1), (2) and (9) of that regulation, entitled ‘Completion and submission of the fishing logbook’, provides: ‘1. Without prejudice to specific provisions contained in multiannual plans, the master of each Union fishing vessel of 10 metres’ length overall or more shall keep a fishing logbook of operations, indicating specifically, for each fishing trip, all quantities of each species caught and kept on board above 50 kg of live-weight equivalent. The 50 kg threshold shall apply as soon as catches of a species exceed 50 kg. 2. The fishing logbook referred to in paragraph 1 shall contain in particular the following information: (a) the external identification number and the name of the fishing vessel; (b) the [United Nations Food and Agriculture Organisation (FAO)] alpha-3 code of each species and the relevant geographical area in which the catches were taken; (c) the date of catches; (d) the date of departure from and of arrival to port, and the duration of the fishing trip; (e) the type of gear, mesh size and dimension; (f) the estimated quantities of each species in kilograms live weight, or, where appropriate, the number of individuals, including the quantities or individuals below the applicable minimum conservation reference size, as a separate entry; (g) the number of fishing operations. … 9. The accuracy of the data recorded in the fishing logbook shall be the responsibility of the master.’ Article 15(1) and (2) of that regulation, entitled ‘Electronic completion and transmission of fishing logbook data’, states: ‘1. Masters of Union fishing vessels of 12 metres’ length overall or more shall record by electronic means the information referred to in Article 14, and shall send it by electronic means to the competent authority of the flag Member State at least once a day. 2. Masters of Union fishing vessels of 12 metres’ length overall or more shall send the information referred to in Article 14 at the request of the competent authority of the flag Member State, and shall in any event transmit the relevant fishing logbook data after the last fishing operation has been completed and before entering port.’ Article 33(1) and (2) of Regulation No 1224/2009, entitled ‘Recording of catches and fishing effort’, provides: ‘1. Each flag Member State shall record all relevant data, in particular data referred to in Articles 14, 21, 23, 28 and 62, on fishing opportunities as referred to in this Chapter, expressed both in terms of landings and, where appropriate, fishing effort, and shall keep the originals of those data for a period of three years or longer in accordance with national rules. 2. Without prejudice to specific rules laid down in Union legislation, before the 15th of each month, each flag Member State shall notify the Commission or the body designated by it, by computer transmission of the aggregated data: (a) for the quantities of each stock or group of stocks subject to [total allowable catch (TAC)] or quotas landed during the preceding month, including those below the applicable minimum conservation reference size, as a separate entry; … …’ Article 34 of that regulation, entitled ‘Data on the exhaustion of fishing opportunities’, provides: ‘A Member State shall inform the Commission, without delay, when it establishes that: (a) the catches of a stock or group of stocks subject to a quota made by the fishing vessels flying its flag are deemed to have exhausted 80% of that quota; … In such an eventuality, it shall provide the Commission, at the Commission’s request, with more detailed and more frequent information than provided for in Article 33.’ Article 35(1) and (2) of that regulation, entitled ‘Closure of fisheries by Member States’, provides: ‘1. Each Member [State] shall establish the date from which: (a) the catches of a stock or group of stocks subject to a quota made by the fishing vessels flying its flag shall be deemed to have exhausted that quota; … 2. As from the date referred to in paragraph 1, the Member State concerned shall prohibit fishing either for the stock or group of stocks whose quota has been exhausted, in the relevant fishery or when carrying on board the relevant fishing gear in the geographical area where the maximum allowable fishing effort has been reached, by all or part of the fishing vessels flying its flag and in particular the retention on board, the transhipments, the relocations and the landings of fish taken after that date and shall decide on a date up to which transhipments, transfers and landings or final declarations of catches are permitted. …’ Article 109 of that regulation, entitled ‘General principles for the analysis of data’, states: ‘1. Member States shall set up a computerised database for the purpose of validation of data recorded in accordance with this Regulation and a validation system no later than 31 December 2013. 2. Member States shall ensure that all data recorded in accordance with this Regulation are accurate, complete and submitted within deadlines laid down in the [CFP]. In particular: (a) Member States shall perform cross-checking, analyses and verifications of the following data through automated computerised algorithms and mechanisms: (i) vessel monitoring system data; (ii) fishing activities data, in particular the fishing logbook, the landing declaration, the transhipment declaration and prior notification; (iii) data from take-over declarations, transport documents and sales notes; (iv) data from fishing licences and fishing authorisations; (v) data from inspection reports; (vi) data on engine power; (b) the following data shall also be cross-checked, analysed and verified where applicable: (i) vessel detection system data; (ii) data on sightings; (iii) data relating to international fisheries agreements; (iv) data on entries into and exits from fishing areas, maritime areas where specific rules on access to waters and resources apply, regulatory areas of regional fisheries management organisations and similar organisations and waters of a third country; (v) automatic identification system data. 3. The validation system shall allow the immediate identification of inconsistencies, errors and missing information in the data. 4. Member States shall ensure that the database clearly displays any data inconsistencies detected by the data validation system. The database shall also flag all data that were corrected and indicate the reason for such a correction. 5. If an inconsistency in the data has been identified, the Member State concerned shall undertake the necessary investigations and, if there are reasons to suspect that an infringement has been committed, take the necessary action. …’ The dispute in the main proceedings and the questions referred for a preliminary ruling In July 2017, the SFPA, the Single Control Authority for Ireland, designated for the purposes of Article 5(5) of Regulation No 1224/2009, had serious doubts as to the veracity and accuracy of the data concerning catches of nephrops in FU16 during the first half of that year, as recorded in the electronic fishing logbook held by the masters of Irish fishing vessels pursuant to Articles 14 and 15 of Regulation No 1224/2009. The masters of Irish fishing vessels had declared that they had caught 733 tonnes of nephrops in FU16. The SFPA took the view that that figure was considerably lower than the actual quantity of nephrops caught in FU16 and that the nephrops caught in FU16 had been falsely declared as having been caught elsewhere. That authority calculated that 1 991 tonnes of nephrops had already been fished in FU16 in 2017, thus exceeding the annual TAC for Ireland, which for 2017 and for that subarea amounted to 1 124 tonnes. The SFPA’s calculation is based on what is known as the ‘time spent’ methodology, which consists of using data provided by fishers concerning, first, the time spent in a particular area and, second, the total catch. On the basis of those data, the SFPA recalculated the yield of a fishing trip based on the premiss that time spent in a certain area is a better indicator of the location of catches than data recorded in electronic fishing logbooks. That authority thus made a new allocation of catches on the basis of the time spent fishing in a given area. Under that methodology, if, by way of example, 75% of the total fishing time during a trip was spent in one area, 75% of the relevant catch would be attributed to that area. By letter of 14 July 2017, the SFPA thus communicated the figure of 1 991 tonnes to the Minister and then to the European Commission. On the basis of that information, the Minister closed the fishery to vessels flying the Irish flag for the period from October to December 2017 and the Commission issued a notice of closure to fishers from all Member States on 2 November 2017. In an action before the High Court (Ireland), the applicants in the main proceedings, who are fishermen active, inter alia, in the FU16 subarea, claimed to have suffered serious economic loss as a result of that closure and challenged, inter alia, the lawfulness of the method used by the SFPA and, by extension, the validity of the closure decision taken by the Minister. By judgment of 30 October 2018, the High Court dismissed the action of the applicants in the main proceedings, and they then appealed against that decision to the Supreme Court (Ireland), which is the referring court. In their appeal, the applicants in the main proceedings submit that the use of the ‘time spent’ methodology has no legal basis in the relevant legislation. The court of first instance erred in considering that that methodology had as its legal basis the fundamental objectives of the CFP instead of applying the regulatory provisions, which, moreover, are clear. In particular, the applicants in the main proceedings submit that the data and information which must be taken into account by the competent authority when fishing catches are calculated are those contained in the fishing logbooks, referred to in Articles 14 and 15 of Regulation No 1224/2009. That authority should confine itself to transmitting those data to the Commission pursuant to Article 33(2)(a) and Article 34 of that regulation. By applying the ‘time spent’ methodology, the SFPA did not transmit the ‘data’ referred to in Regulation No 1224/2009, but rather its expert opinion. The SFPA and the Minister point out that nothing in Regulation No 1224/2009, and in particular Articles 14, 15, 33 and 34 thereof, precludes the use by the SFPA of information other than that recorded in the fishing logbook where that authority has reasonable doubts as to the accuracy of that information. They argue that, although it is apparent from Articles 14 and 15 of that regulation that the fishing logbook contains ‘data’ and ‘information’, there is nothing to suggest that it is only ‘data’ and ‘information’ which the Single Control Authority may notify to the Commission. The referring court states that the main questions of EU law which arise in the present case concern the interpretation of the terms ‘data’ and ‘information’ used in Regulation No 1224/2009 and, in particular, whether the sea fisheries authority is limited, when making notifications to the Commission pursuant to Article 33(2)(a) and Article 34 of that regulation, to sending it the information contained in the fishing logbooks or whether, where it has a reasonable basis to doubt the reliability of that information, it may instead employ a reasonable and scientifically based method to analyse the data recorded in those fishing logbooks in order to obtain more accurate outtake figures for the purposes of those notifications. In those circumstances, the Supreme Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the Single Control Authority in a Member State, in notifying and certifying to the European Commission under Article 33(2)(a) and Article 34 of [Regulation No 1224/2009], limited to notifying the data as to catch in a particular fishing ground logged by fishers under Articles 14 and 15 of that regulation when the Single Control Authority for good reason believes the logged data to be grossly unreliable or is it entitled to employ reasonable, scientifically valid methods to treat and certify the logged data so as to achieve more accurate outtake figures for notification to the European Commission? (2) Where the Authority is so satisfied, based on reasonable grounds, can it lawfully utilise other data flows such as fishing licences, fishing authorisations, vessel monitoring system data, landing declarations, sales notes and transport documents?’ Consideration of the questions referred By those questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 33(2)(a) and Article 34 of Regulation No 1224/2009 must be interpreted as meaning that the Single Control Authority of a Member State is required to notify to the Commission only the data logged by the masters of fishing vessels in the fishing logbook, pursuant to Articles 14 and 15 of that regulation, or whether it may use a reasonable and scientifically valid method, such as the ‘time spent’ methodology, for the purpose of processing those data in order to ensure the accuracy of the catch figures it notifies to the Commission. It should be noted, as a preliminary point, that Article 33(1) of Regulation No 1224/2009 requires Member States to record and keep ‘all relevant data, in particular data referred to in Articles 14, 21, 23, 28 and 62 [of that regulation], on fishing opportunities’. Under Article 33(2)(a) of that regulation, each flag Member State is to notify the Commission by computer transmission of ‘the aggregated data’ relating to the quantities of each stock or group of stocks subject to TACs or quotas landed during the preceding month. Article 34(a) of Regulation No 1224/2009 requires every Member State to inform the Commission without delay when it establishes that the catches of a stock or group of stocks subject to a quota made by fishing vessels flying its flag are deemed to have exhausted 80% of that quota. As regards the establishment of logbooks by the masters of fishing vessels, Article 14(1) of Regulation No 1224/2009 requires masters of EU fishing vessels of 10 metres’ length overall or more to keep a fishing logbook of their operations. In accordance with Article 14(2), the fishing logbook must, inter alia, contain ‘information’ relating to the date and geographical area in which the catches were taken and the estimated quantities of each species. Article 14(6) provides that that information is to be submitted to the flag Member State no later than 48 hours after landing. Article 14(9) of that regulation confers on the master responsibility for the accuracy of the ‘data’ recorded in the fishing logbook. Article 15(1) and (2) of the regulation provides for electronic recording and daily transmission by the masters of EU fishing vessels of 12 metres’ length overall or more of ‘the information referred to in Article 14’ and sets deadlines for doing so. According to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 10 March 2021, Staatliches Amt für Landwirtschaft und Umwelt Mittleres Mecklenburg , C‑365/19, EU:C:2021:189 , paragraph 27 and the case-law cited). As regards, in the first place, the literal interpretation of the provisions referred to by the national court, it is apparent from the wording of Article 33 of Regulation No 1224/2009 that that provision does not relate exclusively to the data referred to in Articles 14, 21, 23, 28 and 62 of that regulation, but covers a wider set of ‘all … data’ that may be considered relevant, as is shown by the expression ‘in particular’. Furthermore, it is clear from the use of the adjective ‘aggregated’ in Article 33(2)(a) of Regulation No 1224/2009 that the data which must be notified to the Commission are not limited to the raw data from the fishing logbook, but that those data must undergo some processing, in the form of aggregation. As regards the wording of Article 34 of Regulation No 1224/2009, it must be observed that it does not refer to the terms ‘data’ and ‘information’ referred to in other articles of that regulation in order to determine whether the 80% threshold for exhaustion of a quota is reached and does not lay down, for the Member States, any methodology for that purpose. It follows from those considerations that, first, the wording of Articles 33 and 34 of that regulation does not support an interpretation which allows the interpretation of the terms ‘data’ or ‘information’ to be restricted solely to raw data recorded by the masters of fishing vessels in the fishing logbook. Second, it follows from the wording of those provisions and, in particular, from the wording of Article 33(2)(a) of Regulation No 1224/2009, that the Single Control Authority must not merely transmit automatically the data recorded by the masters of vessels in the fishing logbook but must process those data before submitting them to the Commission. As regards, in the second place, the context of Articles 33 and 34 of Regulation No 1224/2009, it must be stated at the outset that there is nothing in the wording of Articles 14 and 15 of Regulation No 1224/2009 to support the interpretation that the information referred to in Article 14(2) of that regulation constitutes the only relevant ‘data’ for the purposes of Articles 33 or 34 of that regulation. Furthermore, reference should also be made, in that context, to Articles 5, 9 and 109 of Regulation No 1224/2009. First of all, in accordance with Article 5(5) of that regulation, the Single Control Authority designated by the Member State is responsible, inter alia, for coordinating the collection, treatment and certification of information relating to fishing activities, which it then notifies to the Commission. That information includes, inter alia, that referred to in Article 33(2)(a) and Article 34 of that regulation. Furthermore, according to Article 9(1) of that regulation, Member States are to operate a satellite-based vessel monitoring system for effective monitoring of fishing activities of the fishing vessels flying their flag wherever those vessels may be and of fishing activities in the Member States’ waters. Next, in accordance with Article 109(2) of Regulation No 1224/2009, Member States are to ensure that all data recorded in accordance with that regulation are accurate and complete. To that end, subparagraph (a) of Article 109(2) provides that Member States are to perform cross-checking, analyses and verifications of various items of information and data, inter alia, vessel monitoring system data and fishing activities data, in particular data in the fishing logbook, landing declarations, prior notifications, data from transport documents, sales notes, fishing licences and fishing authorisations. Lastly, Article 109(5) of Regulation No 1224/2009 provides that, if Member States identify inconsistencies in collected information and recorded data, they are to undertake the necessary investigations and, if there are reasons to suspect that an infringement has been committed, they are to take the necessary action. Thus, Article 5(5) and Article 109(2) and (5) of Regulation No 1224/2009 seek to ensure that the Member States transmit accurate and complete information to the Commission, having recourse, where appropriate, to verification. It also follows from the wording of Article 5 that the Single Control Authority designated by a Member State cannot simply automatically transmit the information which it collects to the Commission but must process and verify that information and, where appropriate, take the necessary action. Accordingly, the context of Articles 33 and 34 of Regulation No 1224/2009 supports the interpretation set out in paragraph 32 of the present judgment. A Single Control Authority and, consequently, the Member State to which it belongs, would not be able to fulfil their obligations under that regulation if that authority was unable to check the reliability and accuracy of the data which it collects and confined itself to automatically transmitting the data recorded by masters of vessels in the fishing logbook. In the third place, as regards the objective pursued by Regulation No 1224/2009, it should be recalled that that regulation forms part of the CFP, the objectives of which in terms of conservation are defined in Article 2(1) of Regulation No 1380/2013. According to that provision, the CFP seeks to ensure that fishing and aquaculture activities are environmentally sustainable in the long-term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies. Member States can properly monitor the uptake of quotas and contribute to the achievement of the objectives of the CFP as set out in Article 2 of Regulation No 1380/2013 only if they can ensure that they have accurate and comprehensive information and data on fishing opportunities. Thus, it would be incompatible with the conservation objectives of the CFP to deny the Single Control Authority the power to use a reasonable and scientifically valid method to verify the data recorded in the fishing logbook in order to ensure the accuracy of the data concerning catches with a view to their transmission to the Commission, in accordance with Article 33(2)(a) and Article 34 of Regulation No 1224/2009. As the Commission submits, the interpretation to the effect that the Single Control Authority must notify automatically, without exercising its expertise independently, where, as in the present case, it is satisfied, on reasonable grounds, that the data in the fishing logbook are inaccurate, would require that clear wording be used in either Regulation No 1380/2013 or Regulation No 1224/2009, which is not the case. Furthermore, that interpretation is consistent with the case-law which the Court has already developed in the legislative context preceding Regulation No 1224/2009. As regards Article 9(1) and (2) of Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (OJ 1987 L 207, p. 1), under which the Member States were required to ensure that all landings of stocks or groups of stocks subject to TACs or quotas were recorded and to notify that information to the Commission, the Court has already held that that provision cannot be interpreted as merely laying down an obligation to provide the information which the Member States have gathered within the time limit set. On the contrary, the Member States must ensure that the information notified is correct. Consequently, the Court rejected the argument of the Member State in question that that provision merely imposes on Member States the obligation to notify the information set out in logbooks without verifying it (see, to that effect, judgment of 14 November 2002, Commission v United Kingdom , C‑454/99, EU:C:2002:652, paragraphs 47 and 48). In the light of all the foregoing, it must be held that Article 33(2)(a) and Article 34 of Regulation No 1224/2009 must be interpreted to the effect that the Single Control Authority of a Member State is not required to notify to the Commission only the data recorded by the masters of fishing vessels in the fishing logbook, pursuant to Articles 14 and 15 of that regulation, but may use a reasonable and scientifically valid method, such as the ‘time spent’ methodology, to process those data in order to ensure the accuracy of the catch figures that it notifies to the Commission. Costs Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Sixth Chamber) hereby rules: Article 33(2)(a) and Article 34 of Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006, as amended by Regulation (EU) 2015/812 of the European Parliament and of the Council of 20 May 2015, must be interpreted to the effect that the Single Control Authority of a Member State is not required to notify to the European Commission only the data recorded by the masters of fishing vessels in the fishing logbook, pursuant to Articles 14 and 15 of that regulation, but may use a reasonable and scientifically valid method, such as the ‘time spent’ methodology, to process those data in order to ensure the accuracy of the catch figures that it notifies to the Commission. Bay Larsen Jääskinen Safjan Delivered in open court in Luxembourg on 10 February 2022. A. Calot Escobar K. Lenaerts Registrar President * Language of the case: English. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII