Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In proceedings between Rederij L. de Boer en Zonen BV, a private limited liability company (hereinafter referred to as de Boer), whose registered office is at Urk (Netherlands), and the Produktschap voor Vis en Visprodukten (hereinafter referred to as the Produktschap), whose headquarters are at The Hague, the College van Beroep voor het Bedrijfsleven, The Hague, has asked the Court to interpret the rules on the common organization of the market in fishery products (Council Regulation (EEC) No 3796/81 of 29 December 1981, Official Journal 1981, L 379, p. 1) and the rules establishing a Community system for the conservation and management of fishery resources (Council Regulation (EEC) No 170/83 of 25 January 1983, Official Journal 1983, L 24, p. 1). The Court is basically asked to determine whether a national system of the kind provided for in the Netherlands for herring fishing is compatible with Community law. Herring are caught either young or adult. Fishing for young herring (maatjes) can take place only in the northern and central part of the North Sea and only during June and July. Since they are fatter and thus more tender than the adult herring, which are caught in the same areas but generally later in the year, maatjes are considered to be of higher quality. They are offered for consumption raw, gutted and slightly salted. The other herrings are prepared in various ways; served raw and heavily seasoned they are called gesteurde haring.

2. Let me summarize the facts of the main action. In June 1983 de Boer made a large catch of young and mature herrings off the coast of Scotland. The relevant Netherlands rules prohibited the landing of the latter: they were nevertheless made into gesteurde haring and landed. The Produktschap learnt of it and withdrew the fishing licence granted to de Boer for 1983. De Boer brought the matter before the College van Beroep voor het Bedrijfsleven on 7 July 1983 and claimed that the rules on which the Produktschap relied were contrary to Community law; it also sought an interim suspension of the operation of the decision. That application was dismissed by the President of the College on 11 July 1983, but by judgment of 7 August 1984, the College stayed the proceedings and referred the following question to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

3. For a proper understanding of the case it is necessary to consider the principles underlying the Netherlands provisions which in de Boer's opinion are incompatible with Community law and thus inapplicable to de Boer.

4. That is the Netherlands system. The main Community provisions are those on the conservation and management of fishery resources (Regulation No 170/83) and those on the common organization of the market in fishery products (Regulation No 3796/81). Regulation No 170/83 provides, in order to conserve the biological resources of the sea, for a restriction on fishing and, in particular, catches (Article 2 (2) (d)). When the legislature decides to protect one species or certain groups of species, it lays down each year the total allowable catch. On the basis thereof, the quota available to the Community is calculated and that in turn is divided between the Member States so as to ensure relative stability of fishing activities for each of the protected stock. As I have already said, Article 5 (2) empowers the Member States to determine in accordance with the applicable Community provisions, the detailed rules for the utilization of the quotas allocated to them.

5. I come now to the College's question. As has been seen, it seeks to determine whether rules such as those applying in the Netherlands, which on the one hand confine the national quota to fishermen equipped to treat maatjes and on the other prohibits on pain of revocation of the licence the landing of other kinds of herrings, is compatible with the abovementioned Community provisions. Of those provisions, Article 5 (2) of Regulation No 170/83 is undoubtedly of prime importance. Is it therefore possible to say that the Netherlands measures constitute detailed rules for the utilization of the quotas? And if so, can they be regarded as being in accordance with the applicable Community provisions?

6. On the basis of that conclusion the only possible ground for considering the provision in question lawful would be to classify it as a quality standard. The Netherlands Government seeks to do so by reference to the judgment of 7 February 1984 in Case 237/82 Jongeneel Kaas v Netherlands [1984] ECR 483 and the judgment of 28 March 1984 in Joined Cases 47 and 48/83 Pluimveeslachterij [1984] ECR 1721. Nevertheless it does not seem to me that the argument is very convincing.

7. On the basis of all the above considerations I propose that the following answer should be given to the question put by the College van Beroep voor het Bedrijfsleven, by order of 7 August 1984, in the proceedings between the limited liability company Rederij L. de Boer en Zonen and the Produktschap voor Vis en Visprodukten:

1 Translated from the Italian.