EU Court rejects tuna syndicate’s call for compensation over early closure of 2008 quota

In a landmark judgment handed last Tuesday, the EU Court of Justice rejected the appeals and applications for compensation submitted by the 'Syndicat des Thoniers de la Mediterranee' (STM - Mediterranean tuna

fishermen's association), French fleet shareholders, vessel managers and a vessel owner against the European Commission.

At issue was the early closure, in June 2008, of bluefin tuna fishing for purse seiners flying the Greek, French, Italian, Cypriot or Maltese flag, but sparing Spanish vessels.

The complainants had claimed "discrimination," who sought compensation from the European Commission for losses suffered due to the non-sale of volumes not fished.

Bluefin tuna fishing by purse seiners is permitted from 1 January to 30 June in the North-East Atlantic and the Mediterranean, but under the Common Fisheries Policy the Commission is entitled to adopt urgent stock conservation measures, as it did on June 12, 2008.

The regulation was set aside by the EU Court of Justice in 2011 due to the difference of treatment it established between Spanish seiners and those from other member states, substantiating the appeals lodged by the complainants.

In its judgment the EU Court of Justice said that the existence of a real and measurable loss (required to establish the EU's fault-based liability) sustained by the fishermen was not demonstrated.

It noted that "quotas give fishermen no guarantee that they may catch the full quota allocated to them. A quota constitutes a theoretical maximum catch limit that in no case may be exceeded".

The Court added that "had they been able to fish until 23 June 2008, the fishermen may not have attained their quota for reasons beyond their control. The loss sustained, calculated in terms of the quota not fished, therefore reflects only a hypothetical situation and may not be considered as real and certain".

Furthermore, the loss did not exceed the limits of the economic risks inherent to this sector of activity and was therefore not "abnormal" (another characteristic required to establish the EU's strict liability): the adoption of stock recovery plans and fishing quotas in the form of TACs (total allowable catches) makes it clear to fishermen that this fishing is subject to restrictions and that a fishing season may be closed at any time before the planned date.

The EU's bluefin tuna quota for 2008 was taken into account by the EU regulation, which divided it up into national quotas.

Each country must take measures to ensure that its fleet's fishing effort remains proportional to its fishing opportunities and must draw up an annual fisheries plan.

Although the fishing rights divided up among the member states are used by purse seiners, the rights are granted to states, assured the Court of Justice, and not to the vessels to which states allocate individual quotas. They consequently do not constitute an income guarantee or a guarantee of being able to catch the full quota.