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...

Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-9097

The 18 December 2014 section sixth room of the contentious - administrative of the High Court of Justice of Madrid issued a firm basis the decision No. 682, in the ordinary procedure 113/2014, estimating partially contentious-administrative appeal by the procedural representation of Parleros company, S.L., and fisheries beaches of Fontan, S.L., which challenged the resolution of the General Secretariat of fisheries of December 28, 2012 ("BOE" of) 24 January 2013), for which are set for 2013 the possibilities of fishing for demersal species and pelagic, based on second final disposition of the order ARM/3158/2011, on 10 November, which establishes a plan of management for national fishery Bay of Biscay Northwest bottom trawling vessels.

This judgement annulled partially this resolution of the Secretary General for fisheries December 28, 2012, with regard to Vianto third and fourth Pescarosa vessels due to lack of motivation to not have been pronounced specifically in relation to the application of final transfer of rights of fishing vessel Vianto third Pescarosa quarter and thus violate article 54.1 of the law 30/1992 26 November, legal regime of public administrations and common administrative procedure, provided that resolution that decision motivated way on transmission of possibilities for fishing between both ships at the time requested by entities actors taking this into consideration the criteria for the purpose laid down in article 28.1 of the Act 3/2001 issued new , of 26 November, fishing.

Thus, pursuant to such a statement is run this resolution.

History of made 1. With 2 March date of 2012 the Secretariat-General of fisheries authorized temporary transfer to 2012 of the third Vianto vessel fishing rights to the fourth Pescarosa, requested by the owners thereof based on the ARM/158/2011 order.

2 on March 7, 2012 communicates the intention of definitely transfer the third Vianto fishing rights to the fourth Pescarosa on the basis of article 28.2 of the Act 3/2001, or subsidiarily applies the provisions of article 28.1. c).

3. on June 25, 2012 Vianto third vessel is scrapped.

4. on 18 December 2012 was relocation of the draft of the resolution of the General Secretariat of fisheries from December 28, 2012 ("BOE» of January 24, 2013), for which are set for 2013 the demersal species fishing opportunities and pelagic, interested in the same. With date of December 19, 2012 Parleros assembler, S.L., requesting the inclusion in the Census of the ship Vianto third email. Also by email, on the same day tells that the vessel is scrapped from June 2012 and that it therefore does not generate fishing rights.

5. on 28 December approves the resolution of the General Secretariat of fisheries of December 28, 2012 ("BOE» of January 24, 2013), for which are set for 2013 the demersal species fishing opportunities and pelagic, published in the «Official Gazette» January 14, 2013.

6. the 30 January 2013 stakeholders presented written in which requested is a correction of errors in decisions, since in them did not appear the ship Vianto third and not had taken into account their definitive transfer request. Is it answered on February 27, 2013, indicating that the Fisheries Act does not determine if such transfer is temporary or definitive but that the order ARM/3158/2011, only contemplates the possibility of temporary transmissions of fishing possibilities for trawlers in the Bay of Biscay Northwest national grounds.

7 March 13, 2013 is contentious-administrative appeal against the resolution of the General Secretariat of fisheries from December 28, 2012 ("BOE» of January 24, 2013), for which are set for 2013 the possibilities of fishing for demersal species and pelagic.

8 March 20, 2013 interested parties presented new writing that turns to communicate truthfully intended to transfer definitively the fishing opportunities, or that subsidiary temporarily transferred the rights corresponding to 2013.

Fundamentals of law 1. Article 28.1 of the Act 3/2001, State maritime fisheries March 26, establishes that in the case of distribution of the fishing opportunities, these will be communicable with prior authorization from the Ministry of agriculture, fisheries and food, and report of the autonomous community of the home port of the ship, according to the procedure determined by law and in accordance with the following criteria (: to) prevent the accumulation of fishing opportunities on a ship in volumes higher than those that can be used.

(b) establish a minimum limit of possibilities, below which the vessel must leave the fishery.

(c) justify the transferability is restricted to ships or groups of vessels belonging to certain categories or censuses. In consideration of the technical requirements of the fisheries, the requirements relating to the technical conditions of vessels may be established subject to the transmission.

(d) establish, for the purpose of promoting free competition, the maximum percentage of fishing opportunities which can be accumulated by a company or group of companies societariamente in a same fishery.

Also, article 28.2 of the Act 3/2001 establishes that in the case of vessels of the same Assembly company, and prior fulfilment of the conditions laid down in paragraph 1, transmission between their vessels fishing possibilities will not require administrative authorization, and simply the reliable prior notification to the Ministry of agriculture Fisheries and food. In this case, during the time period the ship received the possibilities to use them, you shall not apply to the ship or ships transmitters, or the ultimate low in specific census by the non-use of a license established in paragraph 4 of article 23, or prescription for loss of habitualness in the fishery established in article 30. Nor shall they apply the regulations set minimum limit of possibilities referred to in paragraph 1, paragraph b) of this article.

2. therefore, article 28 of law 3/2001, establishes the possibility of transfers of fishing opportunities between vessels, differentiating between those which occur between ships of the same Assembly company and those that occur between different company Assembly, although in all of them required prior compliance with the conditions laid down in article 28.1 which establishes that transmissions are to be performed according to the procedure determined by law and in accordance with the following criteria (...), which requires in any case, a previous evaluative activity by the Administration, than in the case of ships of a same Assembly company is fit to check compliance with the provisions of article 28.1 of the Act 3/2001 that is, as recognizes the own judgement No. 682 of the High Court of Madrid.

It should be noted that no case establishes that transfers have to be definitive or temporary. In fact, note that the own article 28.2 expressly indicates that during the time period that the vessel has received the possibilities use, you shall not apply to the ship or ships transmitters, or the definitive low in specific census by the non-use of a license established in paragraph 4 of article 23, or prescription for loss of habitualness in the fishery established in article 30 , forecast that wouldn't make sense in the event that the transfers carried out on the basis of the same are only definitive, but that they will have the duration to be determined in each case, in accordance with the statutory regulation of development.

3. in the case of drag of the Bay of Biscay Northwest national fishing vessels, the procedure article 28.1 of the Act 3/2001, which refers to case the transfer of fishing rights, in the time of the incident was regulated based on the technical specifications of the fishery, in the ARM-3158-2011 order on 10 November, which establishes a plan of management for the fuselages of bottom trawling in the Bay of Biscay Northwest national fishery, which, in its article 6, only provided for the possibility of temporary transfers until December 31 of the year for which they are requested, stating that the Administration after the transfer you will recognize to each ship the new situation arising There is no other regulation applicable to the case at this time.

Therefore, as you recognize the ruling of the High Court of Justice of Madrid, in these cases, so communication takes effect, is required a previous evaluative activity by the Administration, in order to check compliance with the requirements, and the recognition of the new situation by the Secretariat-General of fisheries.
4. in relation to the specific case, i.e., the transfer of rights of fishing among the ships Vianto third and fourth Pescarosa fits indicate first, that at the time of the facts of the first fishing rights were temporarily transferred to the second as a result of the authorization request transfer presented by the interested parties on the basis of article 28.1 of the Act 3/2001 and the ARM-3158-2011 order , and which was authorized as indicated in the background actually.

Second, reliable communication submitted by interested parties requested a definitive transfer where the existing regulations at the time of the facts only provides the possibility of temporary transfers, to the bottom of the Bay of Biscay Northwest national fishing trawlers by what such a request would not comply with the requirements laid down in article 28.1 of the Act 3/2001 that are applicable to all transfers, both those made by way of article 28.1 as those made by way of article 28.2. Note that at the time which was the definitive transfer request involved vessels belonged to different shipowners, with different VAT, while the applicant stated that 90% of the shares of both companies was in the hands of same shareholders what in his view were the same business group.

Finally, it is not possible to include in censuses for the year 2013 to Vianto third vessel, or make a transfer time of their fishing rights, since the ship was scrapped in June 2012.

Therefore, this Secretariat-General for fisheries resolves: first.

Dismiss the request for transmission of the vessel fishing opportunities VIanto third Pescarosa fourth ship, the failure to comply with the requirements laid down in article 28, paragraphs 1 and 2 of law 3/2001, as well as dismiss the request to include the ship Vianto third in the resolution of December 28, 2012, of the Secretary-General of fisheries , by which are set for 2013 the possibilities of fishing for demersal species and pelagic.

Second.

Not applicable the modification of the allocation of fishing possibilities established in the resolution of December 28, 2012, of the General Secretariat of fisheries, which are set for 2013 the demersal species fishing opportunities and pelagic, or the inclusion of the Vianto third ship in the same.

Third party.

Not applicable the modification of the subsequent legal acts by which fishing opportunities is distributed between the Census of trawling in the Cantabrian Sea and Northwest.

This resolution will produce effect from the day following its publication in the "Official Gazette". It must be that it does not put an end to the administrative channels, by appeal in within a month, may be brought before the Minister of agriculture, food and the environment, in accordance with the provisions of section 114 in relation to the 107.1 of the law 30/1992.

Madrid, 27 July 2015.-the General Secretary of fisheries, Andrés Hermida Trastoy.