(Appeal— Common fisheries policy— Non-contractual liability of the European Union— Claim for compensation— Regulation (EC) No530/2008

JUDGMENT OF THE COURT (Fifth Chamber)

13September 2017 (*)

(Appeal— Common fisheries policy— Non-contractual liability of the European Union— Claim for compensation— Regulation (EC) No530/2008— Emergency measures adopted by the European Commission— Sufficiently serious breach of a rule of law— Whether possible to rely on that breach— Principle of non-discrimination— Res judicata)

In Case C‑350/16P,

APPEAL under Article56 of the Statute of the Court of Justice of the European Union, brought on 24June 2016,

Salvatore Aniello Pappalardo, residing in Cetara (Italy),

Pescatori La Tonnara Soc. coop., established in Cetara,

Fedemar Srl, established in Cetara,

Testa Giuseppe & C.Snc, established in Catania (Italy),

Pescatori San Pietro Apostolo Srl, established in Cetara,

Camplone Arnaldo & C.Snc di Camplone Arnaldo & C., established in Pescara (Italy),

Valentino Pesca Sas di Camplone Arnaldo & C., established in Pescara,

represented by V.Cannizzaro and L.Caroli, avvocati,

appellants,

the other party to the proceedings being:

European Commission, represented by A.Bouquet and D.Nardi, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of J.L.da Cruz Vilaça, President of the Chamber, A.Tizzano, Vice-President of the Court, acting as Judge of the Fifth Chamber, M.Berger, E.Levits (Rapporteur) and F.Biltgen, Judges,

Advocate General: E.Sharpston,

Registrar: C.Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 31May 2017,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1By their appeal, MrSalvatore Aniello Pappalardo, Pescatori La Tonnara Soc. coop., Fedemar Srl, Testa Giuseppe & C.Snc, Pescatori San Pietro Apostolo Srl, Camplone Arnaldo & C.Snc di Camplone Arnaldo & C.and Valentino Pesca Sas di Camplone Arnaldo & C.(‘the appellants’) ask the Court of Justice to set aside the judgment of the General Court of the European Union of 27April 2016, Pappalardo and Others v Commission (T‑316/13, not published, ‘the judgment under appeal’, EU:T:2016:247), by which the General Court dismissed their action seeking damages for the harm allegedly suffered following the adoption of Commission Regulation (EC) No530/2008 of 12June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and in the Mediterranean Sea (OJ 2008 L155, p.9).

Legal context

2Council Regulation (EC) No2371/2002 of 20December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L358, p.59), seeks to establish a multiannual approach to fisheries management in order to ensure the long-term viability of that sector.

3Article7 of Regulation No2371/2002, which is entitled ‘Commission emergency measures’, states:

‘1.If there is evidence of a serious threat to the conservation of living aquatic resources, or to the marine eco-system resulting from fishing activities and requiring immediate action, the Commission, at the substantiated request of a Member State or on its own initiative, may decide on emergency measures which shall last not more than six months. The Commission may take a new decision to extend the emergency measures for no more than six months.

2.The Member State shall communicate the request simultaneously to the Commission, to the other Member States and to the Regional Advisory Councils concerned. They may submit their written comments to the Commission within five working days of receipt of the request.

The Commission shall take a decision within 15 working days of receipt of the request referred to in paragraph1.

3.The emergency measures shall have immediate effect. They shall be notified to the Member States concerned, and published in the [Official Journal of the European Union].

4.The Member States concerned may refer the Commission decision to the Council within 10 working days of receipt of the notification.

5.The Council, acting by qualified majority, may take a different decision within one month of the date of receipt of the referral.’

4Article1 of Regulation No530/2008 provides:

‘Fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean by purse seiners flying the flag of or registered in Greece, France, Italy, Cyprus and Malta shall be prohibited as from 16June 2008.

…’

5Article2 of that regulation is worded as follows:

‘Fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean by purse seine[r]s flying the flag of or registered in Spain shall be prohibited as from 23June 2008.

…’

Background to the dispute

6In 2008 the appellants, as owners of seiners flying the flag of Italy, were allocated quotas for purse-seine fishing for bluefin tuna.

7Under Article1 of Regulation No530/2008, purse seiners flying the flag of Greece, France, Italy, Cyprus or Malta were prohibited from purse-seine fishing for bluefin tuna from 16June 2008. By contrast, for purse seiners flying the Spanish flag, that prohibition took effect only from 23June 2008, in accordance with Article2 of that regulation.

8In the judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), the Court declared Regulation No530/2008 to be invalid in so far as the prohibitions it contained regarding purse seiners flying the Spanish flag and Community operators who had concluded contracts with them took effect from 23June 2008, whereas those prohibitions applied from 16June 2008 for purse seiners flying the flag of Greece, France, Italy, Cyprus or Malta and for Community operators who had concluded contracts with them, without that difference in treatment being objectively justified in the light of the objective pursued by Article7(1) of Regulation No2371/2002.

9Moreover, the General Court, by order of 14February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), declared that there was no need to adjudicate on the Italian Republic’s action for annulment of Article1 of Regulation No530/2008 on the ground that, as the Court of Justice had declared the regulation to be invalid in its entirety, the Italian Republic’s action had become devoid of purpose.

10On the same day, the General Court, by order of 14February 2012, Federcoopesca and Others v Commission (T‑366/08, not published, EU:T:2012:74), dismissed, as inadmissible, the action brought by, among others, the appellants for annulment of Regulation No530/2008.

Proceedings before the General Court and the judgment under appeal

11By application lodged at the Registry of the General Court on 11June 2013, the appellants, considering that they had suffered harm as a result of the unlawful conduct of the Commission in adopting Regulation No530/2008, brought an action for damages seeking compensation for the harm which they consider themselves to have suffered, namely a sum corresponding to the difference between the notional income they would have made from bluefin tuna fishing by exhausting the quotas that had been allocated to them for 2008 and the income which they actually made following the early prohibition of bluefin tuna fishing.

12By order of 30September 2013, the President of the Third Chamber of the General Court suspended its examination of that case until such time as the Court of Justice gave judgment in particular in the appeals that had been brought in the meantime in Giordano v Commission (C‑611/12P) and Buono and Others v Commission (C‑12/13P and C‑13/13P).

13In its judgment of 14October 2014, Buono and Others v Commission (C‑12/13P and C‑13/13P, EU:C:2014:2284, paragraphs59 and 60), the Court of Justice, hearing an appeal against the judgment of 7November 2012, Syndicat des thoniers méditerranéens and Others v Commission (T‑574/08, not published, EU:T:2012:583), held that the General Court had, in that judgment, misinterpreted the judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), in holding that, by the latter judgment, the Court of Justice had declared Regulation No530/2008 to be invalid in its entirety. In that regard, the Court of Justice made clear that the judgment in AJD Tuna had declared Regulation No530/2008 invalid only to the extent that it granted more favourable treatment to Spanish seiners, but had upheld the validity of the date of the prohibition of bluefin tuna fishing set in Article1 of Regulation No530/2008 for purse seiners flying the flag of Greece, France, Italy, Cyprus or Malta.

14Before deciding on the appellants’ action for damages, the General Court invited them to express their views on the Court of Justice’s judgments in those cases. The Commission and the appellants submitted their observations by letters lodged at the Registry of the General Court on 6 and 10November 2014 respectively.

15In the judgment under appeal, the General Court, after recalling the conditions that must be satisfied in order for the European Union to incur non-contractual liability, went on to examine, in particular, the requirement relating to the illegality of the Commission’s conduct complained of in the present case.

16Thus, in paragraphs24 to 26 of the judgment under appeal, the General Court held, in essence, that consideration of that requirement was linked, in particular, to the issue of the validity of Regulation No530/2008, as analysed by the Court of Justice in the judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), and further clarified in the judgment of 14October 2014, Buono and Others v Commission (C‑12/13P and C‑13/13P, EU:C:2014:2284), which, in the General Court’s view, called in question its own reasoning in the order of 14February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70).

17In that context, the General Court held, in paragraph27 of the judgment under appeal, (i) that the appellants could not take that order as a basis for arguing that Regulation No530/2008 was invalid in its entirety and (ii) that Article1 of the regulation was valid in their regard.

18The General Court, considering, however, that the question as to whether the appellants’ action was well founded was not settled merely because that argument had been rejected, examined, in paragraphs34 to 40 of the judgment under appeal, whether the Commission had manifestly and gravely disregarded the limits on its discretion when it adopted Regulation No530/2008.

19It pointed out in that regard that the Commission had a broad discretion in the sphere of fisheries, that account had to be taken of the Commission’s objectives in adopting Regulation No530/2008 and that the setting of two different dates for a fishing prohibition could be justified if it allowed those objectives to be better attained.

20The General Court also pointed out, in paragraphs38 and 39 of the judgment under appeal, that the discrimination censured by the judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), related solely to purse seiners flying the Spanish flag.

21It concluded on that basis that the appellants had failed to establish that the Commission had manifestly and gravely disregarded the limits on its discretion and dismissed their action in its entirety, without examining the other conditions for the establishment of non-contractual liability on the part of the European Union.

Forms of order sought by the parties to the appeal

22The appellants claim that the Court should:

–set aside the judgment under appeal;

–in the alternative, uphold their claim for compensation for the alleged harm; and

–order the Commission to pay the costs.

23The Commission contends that the Court should:

–dismiss the appeal; and

–order the appellants to pay the costs.

The appeal

24The appellants put forward two grounds in support of their appeal, alleging errors of law (i) in the assessment of the principle of res judicata and (ii) in the application of the requirement relating to unlawful conduct on the part of the Commission.

The first ground of appeal

Arguments of the parties

25As regards the first ground of appeal, the appellants maintain that the General Court, in holding that only Article2 of Regulation No530/2008 was invalid, disregarded the fact that the order of 14February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), had the force of res judicata.

26They argue that the General Court had declared in that order that there was no need to adjudicate on the Italian Republic’s action for annulment of Article1 of Regulation No530/2008, since, following the delivery of the judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), the result sought by the Italian Republic had been achieved. The General Court thus decided the question of the validity of that regulation by indicating that the latter had been held invalid in its entirety.

27The appellants submit that, although the Court of Justice made clear, in the judgment of 14October 2014, Buono and Others v Commission (C‑12/13P and C‑13/13P, EU:C:2014:2284), that that invalidity extended only to Article2 of the regulation, the effects of such a judgment, which concerned an action for damages, are limited, as the purpose of such an action is not to obtain a declaration that a measure is invalid.

28They further argue that the system of varying decisions of the General Court by the appeal mechanism does not justify depriving a judgment that has become final of the force of res judicata simply because it is given by a lower court.

29In addition, the appellants submit that the General Court infringed the principle of legitimate expectations in choosing to follow an interpretation of the judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), based on the judgment of 14October 2014, Buono and Others v Commission (C‑12/13P and C‑13/13P, EU:C:2014:2284), instead of referring to the findings that it itself had made in its order of 14February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), a fortiori because, unlike the judgment in Buono and Others v Commission, that order was made before the appellants brought their action.

30The Commission contends that the first ground of appeal should be rejected.

Findings of the Court

31In support of their first ground of appeal, the appellants maintain that the General Court, in breach of the principle of res judicata, accepted, erroneously, the clarification given by the Court of Justice in its judgment of 14October 2014, Buono and Others v Commission (C‑12/13P and C‑13/13P, EU:C:2014:2284), concerning the scope of the declaration of invalidity of Regulation No530/2008 in the judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), instead of following the interpretation which the General Court gave to the latter judgment in its order of 14February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70).

32The Court has on various occasions noted the importance in the EU legal order of the principle of res judicata (judgment of 29March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09P, EU:C:2011:191, paragraph123 and the case-law cited).

33Here, as the General Court in essence observed, in paragraph25 of the judgment under appeal, the Court of Justice held in its judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), in response to a request for a preliminary ruling concerning the validity of Regulation No530/2008, that the regulation was invalid in so far as the fishing prohibitions it laid down took effect from 23June 2008 solely for Spanish fishermen, while purse seiners flying the flags of Greece, France, Italy, Cyprus and Malta were subject to those prohibitions from 16June 2008, without that difference in treatment being objectively justified. As has been explained in paragraph13 of the present judgment, the Court made clear in its judgment of 14October 2014, Buono and Others v Commission (C‑12/13P and C‑13/13P, EU:C:2014:2284, paragraphs59 and 60) –– which was given in the appeal brought against the judgment of the General Court deciding upon a claim for compensation brought by French fishermen –– that the invalidity of Regulation No530/2008 concerned only Article2 thereof, which related to Spanish fishermen, and that Article1 of the regulation therefore continued to be valid in relation to purse seiners flying the flag of or registered in Greece, France, Italy, Cyprus or Malta.

34First, by virtue of the force of res judicata attaching to decisions of the Court of Justice concerning the validity of an EU act, such decisions have full effect despite any differences of interpretation to which they may give rise.

35Thus, even if it is accepted that any uncertainty there may have been as to the exact scope of the judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), was finally dispelled only as a result of the clarification provided in the judgment of 14October 2014, Buono and Others v Commission (C‑12/13P and C‑13/13P, EU:C:2014:2284), the fact remains that the first judgment (AJD Tuna) must be deemed to have had, from the time of its delivery, the scope as defined in the second judgment (Buono and Others v Commission) (see, by analogy, judgment of 12February 2008, Kempter, C‑2/06, EU:C:2008:78, paragraph35).

36Second, it is not disputed that, in the order of 14February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), the General Court decided that there was no need to adjudicate on the Italian Republic’s action for annulment of Regulation No530/2008.

37It follows from well-established case-law of the Court of Justice that the force of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (judgment of 29March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09P, EU:C:2011:191, paragraph123).

38Therefore, since the General Court did not adjudicate on the action brought by the Italian Republic for annulment of Regulation No530/2008, there is no ground for complaining that it made an error of law in examining, in the judgment under appeal, the appellants’ claim for compensation on the basis of the judgments of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), and of 14October 2014, Buono and Others v Commission (C‑12/13P and C‑13/13P, EU:C:2014:2284).

39As to the appellants’ argument concerning the legitimate expectations which they claim to have derived from the order of the General Court of 14February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70), it should be recalled that, in accordance with settled case-law of the Court of Justice, the right to rely on the principle of the protection of legitimate expectations extends to any person whom an institution of the European Union has caused, by giving him precise assurances, to entertain justified hopes. Information which is precise, unconditional and consistent, in whatever form it is given, constitutes such assurances (judgment of 16December 2010, Kahla Thüringen Porzellan v Commission, C‑537/08P, EU:C:2010:769, paragraph63 and the case-law cited). By contrast, a person may not plead breach of that principle unless he has been given those assurances (judgment of 16December 2008, Masdar (UK) v Commission, C‑47/07P, EU:C:2008:726, paragraph81).

40Even if a judicial decision were able, on its own, to give rise to a right to entertain justified hopes within the meaning of that case-law, it is sufficient to state that the appellants cannot, in any event, derive any precise assurance concerning the scope of a decision of the Court of Justice from an order by which the General Court held that there was no need to adjudicate, such as the order of 14February 2012, Italy v Commission (T‑305/08, not published, EU:T:2012:70).

41In the light of the foregoing considerations, the first ground of appeal must be rejected as unfounded.

The second ground of appeal

Arguments of the parties

42In support of their second ground of appeal, the appellants maintain that, in paragraph40 of the judgment under appeal, the General Court made an error of law in holding that the difference in treatment found by the Court of Justice in the judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153) did not amount to a serious and manifest breach, by the Commission, of the principle of non-discrimination.

43According to the appellants, it follows both from the Opinion of Advocate General Trstenjak in AJD Tuna (C‑221/09, EU:C:2010:500) and from the judgment of the Court of Justice in the same case (judgment of 17March 2011, AJD Tuna, C‑221/09, EU:C:2010:153) that the difference in treatment at issue in that case was not objectively justified and therefore constituted a serious and manifest breach of the principle of non-discrimination on grounds of nationality.

44They submit that that argument is not undermined by the grounds relied on by the General Court, in paragraphs36 to 39 of the judgment under appeal, in deciding that the Commission had not committed a sufficiently serious breach of the principle of non-discrimination.

45The Commission contends that the second ground of appeal should be rejected. It asserts in that regard that the General Court made an error of law in holding, in paragraph34 of the judgment under appeal, that the appellants were able to rely, in support of their action, on the finding of illegality in respect of Regulation No530/2008, even though, as the General Court rightly held, they were not concerned by that illegality, the regulation remaining valid in their regard. Since that error of law does not affect the operative part of the judgment under appeal, the Commission requests the Court of Justice to replace the relevant grounds of that judgment.

Findings of the Court

46By their second ground of appeal, the appellants complain, in essence, that the General Court held, wrongly, that the breach of the principle of non-discrimination arising from the fact that Spanish fishermen were able, under Article2 of Regulation No530/2008, to fish for bluefin tuna for one week more than purse seiners flying the flag of or registered in Greece, France, Italy, Cyprus or Malta was neither sufficiently grave nor sufficiently clear to constitute a serious breach of that principle by the Commission. In response, the Commission, whilst taking the view that the operative part of the judgment under appeal must be upheld, argues that that judgment contains an error of law in so far as the General Court held that the appellants could rely, in support of their action, on that breach of the principle of non-discrimination.

47The Court will start by examining the Commission’s argument on this point.

48In paragraphs16, 17 and 23 of the judgment under appeal, the General Court noted that it follows from settled case-law of the Court of Justice that in order for the European Union to incur non-contractual liability, a number of conditions must be satisfied, which include the condition that the conduct alleged against the institutions be unlawful on account of a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, to that effect, judgment of 9September 2008, FIAMM and Others v Council and Commission, C‑120/06P and C‑121/06P, EU:C:2008:476, paragraphs106, 172 and 173).

49The General Court further explained that, in accordance with that case-law, if any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for such liability (judgments of 19April 2007, Holcim (Deutschland) v Commission, C‑282/05P, EU:C:2007:226, paragraph57, and of 30April 2009, CAS Succhi di Frutta v Commission, C‑497/06P, not published, EU:C:2009:273, paragraph40).

50In paragraph34 of the judgment under appeal, the General Court held that there was, in the circumstances of the present case, a breach of such a rule of law given that Regulation No530/2008 was vitiated by a failure to observe the principle of non-discrimination, which is a general principle of EU law for the protection of individuals. In paragraphs35 to 40 of that judgment, the General Court therefore considered whether in the circumstances there had been a sufficiently serious breach of that principle and concluded that that had not been the case.

51In proceeding in that way, the General Court, implicitly but necessarily, held that the appellants could rely on the illegality vitiating Regulation No530/2008 in support of their action for damages.

52However, it follows from the Court’s settled case-law that the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (judgment of 10November 2011, The Rank Group, C‑259/10 and C‑260/10, EU:C:2011:719, paragraph62).

53In paragraphs31 and 32 of the judgment under appeal, the General Court observed, rightly, that in the judgment of 17March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), the Court had declared Regulation No530/2008 to be invalid only to the extent that purse seiners flying the Spanish flag were given an extra week of fishing, but had upheld the validity of the regulation in so far as it prohibited bluefin tuna fishing by Greek, French, Italian, Cypriot and Maltese seiners from 16June 2008.

54Thus, as the Court decided in the judgment of 14October 2014, Buono and Others v Commission (C‑12/13P and C‑13/13P, EU:C:2014:2284), the breach of the principle of non-discrimination arising from Article2 of Regulation No530/2008 did not affect the validity of Article1 of that regulation with regard, in particular, to the appellants’ situation.

55In those circumstances, as the Commission has argued, the General Court could not, without making an error of law, hold, in paragraph34 of the judgment under appeal, that the appellants were nonetheless fully entitled to rely, in support of their action, on the breach of that principle, provided that that breach was sufficiently serious. Since the illegality affecting Regulation No530/2008, which worked in favour of Spanish seiners, did not concern the appellants’ situation, the appellants could not rely on that illegality for the purposes of their action.

56It follows that the General Court erred in law in holding otherwise.

57That said, it is settled case-law of the Court of Justice that, if the grounds of a decision of the General Court contain an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and a substitution of grounds must be made (judgment of 26January 2017, Mamoli Robinetteria v Commission, C‑619/13P, EU:C:2017:50, paragraph107 and the case-law cited).

58It follows from the reasoning set out in paragraphs52 to 56 of the present judgment that in the circumstances of this case there can be no non-contractual liability on the part of the European Union vis-à-vis the appellants. Accordingly, the error of law in the judgment under appeal cannot cause that judgment to be set aside in so far as it dismissed the appellants’ action seeking to put such liability in issue.

59In view of those considerations, the second ground of appeal must be rejected as ineffective.

60The appeal must therefore be dismissed in its entirety.

Costs

61Under Article184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article138(1) of those rules, which is applicable to appeal proceedings by virtue of Article184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the appellants have been unsuccessful, they should be ordered to pay the costs relating to the present appeal.

On those grounds, the Court (Fifth Chamber) hereby:

1.Dismisses the appeal;

2.Orders MrSalvatore Aniello Pappalardo, Pescatori La Tonnara Soc. coop., Fedemar Srl, Testa Giuseppe & C.Snc, Pescatori San Pietro Apostolo Srl, Camplone Arnaldo & C.Snc di Camplone Arnaldo & C. and Valentino Pesca Sas di Camplone Arnaldo & C. to pay the costs.

[Signatures]

*Language of the case: Italian.