AJD Tuna Ltd v. Direttur tal-Agrikoltura u s-Sajd, Avukat Generali - Case C-221/09
On 17 March the European Court of Justice issued a judgement stating that the European Commission had discriminated against the Maltese Company AJD Tuna when in 2008 it issued Regulation (EC) No 530/2008 establishing emergency measures (adopted on the basis of article 7 of Council Regulation (EC) No 2371/2002 – Basic Regulation) for the protection of the bluefin tuna stock. This Regulation prohibited purse seiners flying the flag of Malta, Greece, France, Italy and Cyprus from fishing for bluefin tuna in the Eastern Atlantic and Mediterranean from 16 June 2008, and purse seiners flying the flag of Spain from 23 June 2008. The Regulation also prohibited Community operators from accepting landings, the the placing in cages for fattening or farming, or transhipments in Community waters or ports of bluefin tuna caught by seiners in those zones from the same dates. The prohibition on fishing for bluefin tuna was not imposed because the quota allocated to a Member State had been used up, but because of the likelihood of exhaustion of bluefin tuna stocks and the impact of purse seiner fishing on those stocks.
On 12 August 2008 the Maltese company ADJ Tuna instituted a legal proceeding against the Maltese Director of Fisheries seeking compensation for damages suffered due to the implementation of the EU Regulation. AJD Tuna also claimed it was unable to acquire the quantity of bluefin tuna which it had agreed to buy from the French and Italian fishermen before the opening of the fishing season. Considering that the outcome of this national case was depending on the validity of the Regulation which issues emergency measures, the Maltese court sought a ruling from the European Courtof Justice on this issue. The Maltese Court addressed 10 questions to the European Court claiming the invalidity of Regulation (EC) No 530/2008 on the basis of different arguments: the breach of the principle of proportionality, the adversarial principle, the non-discriminatory principle, the principle of effective judicial protection and the legitimate expectations of Community operators, the breach of the obligation to state the reasons behind the adoption of the emergency measures, and the lack of establishing the existence of a serious threat to the conservation.
The European Court of Justice "concludes that the regulation is invalid in so far as it treats Spanish purse seiners differently from other purse seiners without such difference in treatment being objectively justified in view of the objective pursued, which was the protection of the bluefin tuna stocks." The Regulation infringed the principle of non-discrimination. The Commission justified the difference in treatment on the facts that: owing to their small number, the Spanish seiners were not likely to exceed catch quota allocated to them before the 23 June 2008, whereas that likelihood existed from 16 June 2008 as regards the other seiners, in view of their significant number; and that Spanish seiners fish mainly in the Balearic zone and begin their fishing season a week later than other seiners. The Court deliberated that “in the light of the explanations given to the Court, it does not appear that objective differences exist between purse seiners according to their flag or the Member State in which they are registered, as regards their capacity to catch or as regards their impact on the exhaustion of bluefin tuna stocks." The European Court rejected all other arguments.
It is important to underline that the Court, in answering the cliam of having deprived Community operators of their legitimate expectation, clarified that "as the Commission rightly stated, Community operators did not receive any assurance from the Commission that they would receive delivery of the full quantity of bluefin tuna for which they had concluded contracts with fisherman. Community operators whose activity consists in buying bluefin tuna for farming and fattening cannot rely on the principle of the protection of the legitimate expectations, since they are in a position to foresee that such measures [emergency measures resulting in the fishing season being closed prior to the normal date] may be taken."
The judgement may now open compensation claims form other fishermen involved including Cypriot, French, Greek, Italian, and Maltese fisherman
By Arianna Broggiato
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