The European Ombudsman, P. Nikiforos Diamandouros, has criticised the European Commission for its interpretation of rules on fishing in the waters surrounding the Azores, a group of islands in the Atlantic ocean belonging to Portugal. This follows a complaint contesting the Commission's view concerning the date beyond which the regime governing the right to fish in Azorean waters (the zones up to 200 nautical miles from the baseline of the Azores) changed, making it possible for vessels belonging to countries other than Portugal henceforth to fish in these waters. According to the Commission's interpretation, the presence, in January 2004, of Spanish fishing vessels between 100 and 200 miles off the Azores complied with Community law because, in its view, the rules excluding non-Portuguese vessels from fishing in the zone between 100 and 200 miles of the Azorean waters had been repealed in November 2003. Contrary to the Commission's view, however, the Ombudsman concluded that this was not the case. He further pointed out that the Commission's own statements to this effect, contained in an Explanatory Memorandum published in February 2004, meant that - in addition to this legal error - the Commission had acted inconsistently.

Background to the case

In January 2004, Spanish fishing vessels were detected in the zone between 100 and 200 miles off the Azores. The Regional Government of the Azores submitted a complaint against Spain to the Commission, claiming that this activity was in breach of Regulations 685/95 and 2027/95 (known as the 1995 Regulations), which basically excluded non-Portuguese vessels from fishing in the Azorean waters, and presented a serious and imminent threat to living aquatic resources in these waters. The Spanish authorities referred to Regulation 1954/2003(1), Article 5 (1) of which limits protection to the waters up to 100 nautical miles from the baseline of the Azores, meaning that such protection should no longer be available as regards the zone between 100 and 200 miles. In its first statements, the Commission took the view that Article 5 (1) had entered into force on 14 November 2003, the date of entry into force of Regulation 1954/2003.

In a letter of 18 February 2004, the complainant asked the Commission to confirm that the 1995 Regulations remained in force until the entry into force of a further regulation or until 1 August 2004, at the latest. The Commission replied that the entry into force of Regulation 1954/2003 on 14 November 2003 meant that the previous regime had been replaced (i.e., that the 1995 Regulations had been repealed) as of that date. No emergency measures could therefore be adopted regarding the presence of Spanish vessels outside the 100 nautical mile zone because these boats complied with the rules in force.

The complaint

The complainant then turned to the Ombudsman contesting the Commission's interpretation of the relevant rules, contained in its statements made since January 2004, most notably as regards the date as of which Regulation 1954/2003 repealed the 1995 Regulations.

Taking into account the wording, the structure and the purpose of the relevant rules in Regulation 1954/2003, the Ombudsman considered that the Commission's interpretation was erroneous. He pointed out that Regulation 1954/2003 contains, in Article 15, an explicit provision concerning the date on which the repeal of the 1995 Regulations was to take effect. It is clear that this date was not 14 November 2003, as the Commission argued, but a subsequent date that could be as late as 1 August 2004. He further added that the position adopted by the Commission was inconsistent with the one it had taken in an Explanatory Memorandum concerning another draft regulation, which was published in February 2004, that is, at a date subsequent to the Commission's statements which the complainant contested. This legal error and inconsistency constitute maladministration, he said.

The Ombudsman's decision in this case can be found on his website at:

 

For further information, please call Mr Gerhard Grill, Principal Legal Adviser, tel. +33 3 88 17 24 23.

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(1) Council Reg. (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95.