1 maart: Commissie constateert opnieuw niet-uitvoering van Hof-arrest door Frankrijk
Nieuwsbericht | 28-02-2006
Brussels, 1 March 2006
In a ruling on 12 July 2005, the European Court of Justice (ECJ) ordered France to pay a lump sum of € 20 million and a periodic 6-month penalty of € 57,761,250 running from that day, for failing to comply with a 1991 Court ruling on serious failings in its enforcement of fisheries rules. The European Commission's task was to assess if, at the end of the 6-month period, (i.e. on 12 January 2006) France had fully complied with its Court obligations. The Commission decided, on 1 March 2006, that despite progress, that this was not yet the case. France will, therefore, have to pay the € 57 million penalty payment. The Commission is committed to helping France in her endeavours to ensure that, by next July, all the necessary measures are taken to fully meet her obligations.
1. Did the Commission decide today to impose this penalty payment on France?
The answer is 'no'. The task of the European Commission was clear: it had to assess whether or not, at the end of the first six-monthly period following the European Court of Justice (ECJ) ruling of July 2005, France had fully complied with all the obligations under this ruling. The Commission carried out a thorough and rigorous evaluation of the situation regarding the two failings and found that they had not been rectified at that stage. The result is that France will have to pay the financial penalty set by the Court.
2. Why did the Court impose these financial penalties on France, in the first place?
The main point at stake here is the continued failure of France to remedy shortcomings as requested by a first ECJ judgment in June 1991, thus almost 15 years ago. This judgment held, on application by the Commission, that between 1984 and 1987, France had not enforced Community law on the protection of undersized fish, especially hake. This was due, in particular, to weaknesses in the monitoring and control of fishing and landing activities and the lack of effective sanctions against those found breaking the rules protecting young hake.
Over the next 11 years, the Commission monitored the situation in France and observed, on several occasions, that the situation remained unsatisfactory. Undersized fish were still marketed as the measures in place were no deterrent to would-be offenders. Seeing that, despite sending two reasoned opinions to France in 1996 and 2000 in relation to these persistent failings, there was no still progress in this area, the Commission decided to return to the ECJ, in 2002. This time, the Commission asked the Court to impose a daily penalty payment of € 316,500 from the delivery of the new judgment until the day of full compliance.
In its judgment of 12 July 2005, the ECJ first of all stressed that the persistence of the practice of offering undersized hake for sale and the lack of effective action by France were such as to seriously prejudice the Community's objective of conserving fish resources.
The ECJ, therefore, ordered France to pay, first, a penalty payment of € 57,761,250 for each 6-month period, from the day of the judgment, until the day France fully complied with the 1991 ruling. In setting this amount, the ECJ took into account the persistence and seriousness of the failings and France's ability to pay. Second, a lump sum of €20 million for the persistence of France's infringement and the public and private interests at stake.
3. Since when has the Court imposed financial penalties on Member States? Has it happened before?
In a Community based on the rule of law, it is crucial that judgments of the ECJ are fully complied with by Member States. This is why Member States decided to include a provision in the Maastricht Treaty that would ensure compliance with ECJ rulings. The special judicial procedure concerned provides for the imposition of penalty payments or lump sums by the ECJ on Member States which fail to comply with earlier ECJ judgments having found them in breach of their obligations under Community law.
The 12 July 2005 case against France was only the third under this provision. The other two related to Greece in July 2000, and Spain in November 2003. The ECJ imposed a periodic penalty payment of € 20,000 for each day Greece failed to take the necessary measures to comply with a 1992 ECJ ruling related to the safe disposal of waste. In the case of Spain, the ECJ imposed a penalty payment of € 624,150 per year and per 1% of bathing areas in Spanish inshore waters which did not meet the required quality under Community rules. Spain had not taken all the necessary measures to comply with a 1998 judgment.
In both cases, the ECJ rulings and the penalty payments ensured the respect for Community law. Greece paid the penalty for eight months, when the Commission found that the judgment had been complied with and ended the procedure, Spain did not have to make any payment because, following assessment of the data concerning the first bathing season (summer 2004), the Commission considered, already in December 2005, that the ECJ judgement had been fully complied with.
4. What should France have done following the July 2005 Court judgment?
In correspondence sent to the French authorities last year, the Commission identified the action that it expected France to take to meet her ECJ obligations. This required that the control system put in place by France be comprehensive, integrated and based on an adequate regulatory framework, that inspections be thorough and complete, that the use of inspection means correspond to a rational strategy and that the system be put in place in a transparent and sustained manner. It also specified that the sanction regime had to guarantee a deterrent effect as requested by the ECJ ruling.
The Commission then identified the various steps that had to be taken in every control area concerned as well as the exact information it expected to receive on inspections at sea and in ports, inspections of first sale and after the first sale of fish as well as its transport. This information had also to include details of infringements detected during these inspections. The Commission also requested details of the follow up of detected infringements and the corresponding sanctions.
5.What did the Commission do to ascertain the situation in France?
The Commission was in contact with the French authorities informing them of the steps they were expected to take and the information that France was to provide (see previous answer). Meetings took place between Commission officials and representatives of the French authorities. Commission officials also undertook 7 inspection visits to France to see for themselves what the enforcement situation was on the ground. The Commission then carried out a careful and comprehensive assessment of all the information at its disposal before considering its decision. It is on the basis of the facts contained in this assessment that the College of Commissioners decided that France had not yet fully complied with her ECJ obligations.
6. What shortcomings remain?
The Commission acknowledges the measures recently taken by France. However, their impact is still limited. Indeed, not all the announced initiatives have been implemented. Others, such as changes in France's legislation, extending the application of administrative sanctions to all infringements of EU fisheries rules, which came into effect on 6 January 2006, are too recent to have yet had a measurable impact.
Deficiencies in control
The measures taken to strengthen the effectiveness of the control system, particularly through strengthened co-ordination between inspections throughout the chain of activities from the vessel to the final sale have not yet led to operational changes on the ground where Commission officials still noted the absence of an overall strategy and the failure to use information already collected in inspections upstream.
Shortcomings were also noted in the numbers, quality and thoroughness of inspections of the fishing, landing, transport and marketing activities. This was often due to the limited human resources dedicated to this purpose and, often, the lack of specific training of all inspectors. These shortcomings are compounded by inadequate reports of the inspections. Indeed, Commission officials noted detected infringements not being subject to a written report.
The Commission noted that in the Department of Finistère which, because of the fisheries undertaken in that area is particularly vulnerable to landings of undersized hake, the inspections of landings for 2005, up to November, represented no more than 1% of all landings. Even lower ratios have been observed for other sensitive areas such as the Loire and Aquitaine regions.
Follow up of infringements
The Commission notes that the system in place from July 2005 to 6 January 2006 (when France modified it) was insufficient to guarantee the efficient pursuit of infringements.
Thus, for undersized hake, which was the particular target of the judgment by the Court on 12 July 2005, the most recent data show, for 2004, 2005 and 2006, four, seven and three infringement reports respectively, with no sanction s imposed on rule breakers over the same period.
The Commission concludes therefore that France cannot be regarded as being fully in compliance with the ECJ judgment. It calls on France to take the action it identified as necessary in its correspondence of last year so that it is able to declare that France fulfils the ECJ obligations by 12 July 2006.
7. Should France not have been given more than 6 months to put in place the necessary measures?
The ECJ ruling is clear both on the amount of the penalty payment and on the duration of each assessment period, which is of 6 months. Both the Commission and France are bound by that ruling and cannot modify the length of the assessment period.
In any case, we need to place the case in the context of a persistent failure to comply with Court obligations dating to June 1991. In the interim period, there were also two reasoned opinions sent by the Commission in 1996 and 2000. Furthermore, the hake recovery plan, adopted in April 2004, requires that 20% of the landings from the fisheries concerned be effected in the presence of inspectors. All this, plus the knowledge that the Commission had referred France's continued failure to meet her 1991 Court obligations to the ECJ should have provided more than ample encouragement to France to rectify the identified failings.
8.What happens to such payments (lump sums and penalty payments) paid by Member States?
Member States have to pay such money into the EU budget where it is entered as "other revenue of the Community" within the meaning of Article 269 of the EC Treaty and the own resources legislation. In accordance with general principles of budgetary law (principle of universality), it is not earmarked for any specific use, but simply supports the financing of the general budget. Therefore, the effect of receiving such "other revenue" is that the contributions made by Member States under the "fourth resource" to ensure a balanced EU budget, is reduced.