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Resolution Of 27 July 2015, Of The Secretary-General Of Fisheries, By Which, In Execution Of Judgment, Modifies The One Of December 28, 2012, Why Settle For 2013 The Pela And Demersal Species Fishing Opportunities...

Original Language Title: Resolución de 27 de julio de 2015, de la Secretaría General de Pesca, por la que, en ejecución de sentencia, se modifica la de 28 de diciembre de 2012, por la que se establecen para 2013 las posibilidades de pesca de las especies demersales y pelá...

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TEXT

On December 18, 2014, the Sixth Section of the Board of the Contentious-Administrative Tribunal of the Superior Court of Justice of Madrid gave a firm statement of Judgment No. 682, in the Ordinary Procedure 113/2014, in part, the administrative-administrative action brought by the procedural representation of Armaradora Parleros, S.L., and Fisheries Beaches of Fontan, S.L., for which the Resolution of the General Secretariat of Fisheries of 28 December 2000 was contested. 2012 ("BOE" of 24 January 2013), establishing for 2013 the fishing opportunities of the demersal and pelagic species, on the basis of the final provision of the second order of Order ARM/3158/2011 of 10 November 2011 establishing a management plan for the bottom trawls of the North West Cantabrian National Cale.

This judgment partially annulled that Resolution of the General Secretariat of Fisheries of 28 December 2012, with regard to the vessels Vianto Tercero and Pesrosa Cuarto, for lack of motivation since they did not In connection with the request for the definitive transfer of the fishing rights of the vessel Vianto Tercero al Pesrosa Cuarto and thus to infringe Article 54.1 of Law 30/1992, of 26 November, of the Legal Regime of the Administrations Public and the Common Administrative Procedure, providing for a new resolution to be adopted. give a reasoned opinion on the transfer of fishing opportunities between the two vessels on the day requested by the contracting entities taking into account the criteria for the effect set out in Article 28.1 of Law 3/2001 of 26 November, for Fisheries.

Thus, in compliance with that Judgment, this Resolution is dictated.

Fact Background

1. With the date of 2 March 2012 the General Secretariat of Fisheries authorized the temporary transfer for the year 2012 of the fishing rights of the vessel Vianto Tercero to Pesrosa Cuarto, requested by the owners of the same on the basis of the Order ARM/158/2011.

2. On 7 March 2012, the intention to transfer the fishing rights of the Vianto Tercero to the Pesrosa Cuarto definitively on the basis of Article 28.2 of Law 3/2001 is communicated, or the provisions of Article 28.1.c shall be applied.

3. On June 25, 2012 the vessel Vianto Tercero is scrapped.

4. On 18 December 2012, the draft of the Resolution of the General Secretariat for Fisheries of 28 December 2012 ("BOE" of 24 January 2013) was moved, establishing for 2013 the fishing opportunities for demersal species. and pelagics, to those interested in it. With a date of 19 December 2012, Armadora Parleros, S.L., requests the inclusion in the census of the vessel Vianto Tercero by e-mail. Also by email, the same day is indicated that the ship has been scrapped since June 2012 and therefore does not generate fishing rights.

5. On 28 December, the Resolution of the General Secretariat for Fisheries of 28 December 2012 ("BOE" of 24 January 2013), establishing for 2013 the fishing opportunities for demersal and pelagic species, is hereby approved, and is published in the "BOE" on 14 January 2013.

6. On 30 January 2013, the interested parties submitted a written request for a correction of errors in the decisions, since the vessel Vianto Tercero was not listed on them and their request for transfer was not taken into account. final. It is answered on February 27, 2013, indicating that the fishing law does not determine whether such transfers are temporary or definitive but that the Order ARM/3158/2011, only contemplates for the trawlers of the Cantabrian National Caladero Noroeste the possibility of temporary transmissions of fishing opportunities.

7. On 13 March 2013, an administrative dispute was lodged against the Resolution of the General Secretariat for Fisheries of 28 December 2012 ('BOE ' of 24 January 2013), establishing for 2013 the fishing opportunities for the demersal and pelagic species.

8. On 20 March 2013, the interested parties submitted a new letter in which the intention to transfer the fishing opportunities definitively, or to temporarily transfer the rights of the fishing rights, is again to be communicated. for 2013.

Law Fundamentals

1. Article 28.1 of Law 3/2001, of 26 March of the State Maritime Fisheries, states that in the case of distribution of fishing opportunities, these will be transmitted with prior authorization from the Ministry of Agriculture, Fisheries and Food. and prior to the report of the Autonomous Community of the base port of the vessel, following the procedure to be determined and in accordance with the following criteria:

(a) Avoid the accumulation of fishing opportunities on a vessel in volumes greater than those that may be used.

b) Set a minimum limit of possibilities, below which the vessel must abandon the fishery.

(c) Justify that the transmissibility is restricted to vessels or groups of vessels belonging to certain categories or censuses. In the light of the technical requirements of the fisheries, the requirements concerning the technical conditions of the vessels subject to the transmission may be laid down.

(d) to establish, for the purpose of promoting free competition, the maximum percentage of fishing opportunities which may be accumulated by a company or group of undertakings involved in a single fishery.

Also, Article 28.2 of Law 3/2001 states that in the case of ships of the same shipowning undertaking, and after compliance with the conditions laid down in paragraph 1, the transmission of fishing opportunities between its own vessels will not require administrative authorisation, and will suffice with prior and strong communication to the Ministry of Agriculture, Fisheries and Food. In this case, during the period of time the vessel has received the possibilities, it will not apply to the ship or the transmitting vessels, nor the definitive reduction in the specific Census for the non-use of the license. in Article 23 (4), or the prescription for loss of habituality in the fishery provided for in Article 30. Nor shall the minimum limit of the rules laid down referred to in paragraph 1 (b) of this Article be applied to them.

2. Therefore, Article 28 of Law 3/2001 provides for the possibility of transfers of fishing opportunities between vessels, differentiating between those which are carried out between vessels of the same shipowning undertaking and those which are carried out between vessels of different shipowning undertakings, although in all of them it is necessary to comply with the conditions laid down in Article 28.1, in which it is established that the transmissions must be carried out in accordance with the procedure laid down in Article 28 (1) of the Treaty. it is determined and in accordance with the following criteria (...), which it requires in any event, a prior assessment by the administration, which in the case of ships of the same shipowning undertaking shall have to verify compliance with the provisions of Article 28.1 of Law 3/2001, that is, as it acknowledges Judgment No 682 of the High Court of Madrid.

It should be noted that no case is established that the transfers should be final or temporary. In fact, it should be noted that Article 28.2 itself expressly states that during the period of time the vessel which has received the possibilities may use them, it shall not apply to the ship or the transmitting vessels, nor the final discharge in respect of the vessel. Specific census for the non-use of the licence provided for in Article 23 (4), nor the prescription for loss of habituality in the fishery provided for in Article 30, which would not make sense in the event that the the transfers that are made on the basis of the same are only final, but will have the duration be determined in each case, in accordance with the regulatory development regulation.

3. In the case of the trawlers of the Cantabrian National Caladero Noroeste, the procedure referred to in Article 28.1 of Law 3/2001, in order to bring to the case the transfer of fishing rights, at the time of the facts was found on the basis of the technical specifications of the fishery, in Order ARM/3158/2011 of 10 November 2011 establishing a management plan for the bottom trawls of the North West Cantabrian National Cale, where, in its Article 6 only provision was made for the possibility of temporary transfers until 31 December of the year for which they are requested, establishing that the administration after the transfer will recognize each ship the resulting new situation, not existing at that time another regulation applicable to the case.

Therefore, as the judgment of the Superior Court of Justice of Madrid acknowledges, in these cases, in order for the communication to take effect, it is necessary to have a prior assessment by the administration, with the the purpose of verifying compliance with the requirements and the recognition of the new situation by the General Secretariat for Fisheries.

4. With regard to the specific case, that is, the transfer of fishing rights between the vessels Vianto Tercero and Pesrosa Cuarto be indicated first, that at the time of the facts the fishing rights of the former were found temporarily transferred to the second as a result of the request for transfer authorisation submitted by the interested parties on the basis of Article 28.1 of Law 3/2001 and Order ARM/3158/2011, and which was authorised as indicated in the factual background.

Secondly, the feisty communication submitted by the interested parties asks for a definitive transfer when the development rules in force at the time of the facts only provide for the bottom trawlers of the National Cantabrian Caladero Noroeste the possibility of making temporary transfers, so that application would not comply with the requirements laid down in Article 28.1 of Law 3/2001, which apply to all transfers, both (a) to be carried out by means of Article 28 (1) such as those carried out on the route of the Article 28.2. It should be noted that at the time when the request for final transfer was made, the vessels involved belonged to different shipowning companies, with different CIF, although the interested party indicated that 90% of the shares of both companies it was in the hands of the same shareholders for what they considered to be the same business group.

Finally, it is not possible to include in the censuses for the year 2013 to the vessel Vianto Tercero, nor to carry out a temporary transfer of their fishing rights, since the ship was scrapped in June 2012.

For all this, this General Secretariat of Fisheries resolves:

First.

Reject the application for the definitive transfer of fishing opportunities for the vessel VIanto Tercero to the vessel Pesrosa Cuarto, failing to comply with the requirements laid down in Article 28 (1) and (2) of Law 3/2001, as well as the rejection of the application to include the vessel Vianto Tercero in the Resolution of 28 December 2012, of the General Secretariat for Fisheries, establishing for 2013 the fishing opportunities for demersal and pelagic species.

Second.

The change in the allocation of fishing opportunities set out in the Resolution of 28 December 2012 of the General Secretariat for Fisheries, establishing for 2013 the fishing opportunities for species, is not appropriate. demersal and pelagic, nor the inclusion of the vessel Vianto Tercero in the same.

Third.

The modification of the subsequent legal acts by which fishing opportunities are shared between the bottom trawl census of the Cantabrian and the Northwest is not appropriate.

This Resolution will produce effects from the day following its publication in the "Official State Gazette". It must be stated that it does not put an end to the administrative procedure and may, within one month, bring an action before the Minister for Agriculture, Food and the Environment, in accordance with the provisions of Article 114 of the Treaty. relationship to the 107.1 of Law 30/1992.

Madrid, July 27, 2015. -Secretary General of Fisheries Andres Hermida Tragoy.