Judgment of the Court (First Chamber) 21 March 1985

In Joined Cases 86 and 87/84 REFERENCES to the Court under Article 177 of the EEC Treaty by the Economische Politierechter [magistrate dealing with commercial offences] at the Arrondissementsrechtbank [District Court] Middelburg for a preliminary ruling in the criminal proceedings against

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, T. Koopmans and R. Joliét, Judges, Advocate General: C. O. Lenz Registrar: D. Louterman, Administrator

gives the following

JUDGMENT

Decision

Costs

1. By two orders dated 9 March 1984, which were received at the Court on 28 March 1984, the Economische Politierechter [magistrate dealing with commercial offences] at the Arrondissementsrechtbank [District Court] Middelburg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 14 of Council Regulation (EEC) No 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources (Official Journal 1983, L 24, p.14).

2. That question was raised in criminal proceedings brought against I.Bout en Zonen BV. That company is charged with having infringed Article 14 (3) of Council Regulation No 171/83 by fishing for sole or plaice, or both, with beam trawls within the 12-mile zone along the Netherlands coast from a vessel exceeding 70 grt (gross registered tonnage).

3. Since the question raised in the two orders for reference was identical, the Court, by order of 26 September 1984, joined the cases for the purposes of the procedure and the judgment.

4. The magistrate dealing with commercial offences at the Arrondissementsrechtbank Middelburg, before whom the main proceedings were brought, points out that it is not clear from Council Regulation No 171/83 how or under which provisions the 70 grt are to be calculated. He then states that the method of measuring tonnage laid down by the Oslo Convention of 20 June 1947, introducing a uniform system for measuring the tonnage of ships, which was applied under Netherlands legislation at the material time, may cause the grt tonnage of identical fishing vessels having the same basic dimensions to vary, not on the basis of displacement, speed or true capacity but on the basis of the breadth of the ribs and of the floor plate. It is therefore possible for fishing vessels of the same nature and type to be treated differently. In his view, this might give rise to discriminatory treatment between Netherlands vessels, some being permitted to fish in the coastal waters whilst other identical vessels are not. That possibility induced him to put the following question to the Court:

5. As the Commission of the European Communities and the Netherlands Government rightly point out, there is no provision of Community law defining the method of calculating the 70 grt referred to in Article 14 (3) of Council Regulation No 171/83. Since there are no Community rules, the Member States must themselves decide which method of calculation is used.

6. With regard to the fears of unequal treatment of identical vessels expressed by the court making the reference, it need only be stated that that possibility does not arise from the limit of 70 grt laid down by Council Regulation No 171/83 but solely from the method of calculation prescribed by national law.

7. The reply to the question raised by the Economische Politierechter at the Arrondissementsrechtbank Middelburg must therefore be that, in the present state of Community law, the method of calculating the 70 grt laid down as a maximum tonnage in Article 14 (3) of Council Regulation (EEC) No 171/83 of 25 January 1983, laying down certain technical measures for the conservation of fishery resources, must be determined by the Member States.

8. The costs incurred by the Commission of the European Communities and the Netherlands Government, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (First Chamber), in answer to the question referred to it by the Economische Politierechter at the Arrondissementsrechtbank Middelburg by two orders dated 9 March 1984, hereby rules:

1 Language of the Case: Dutch.

2 after considering the observations submitted on behalf of the Netherlands by Mr I. Verkade, acting as Agent, the Commission of the European Communities by Mr R.C. Fischer, acting as Agent, after hearing the Opinion of the Advocate General delivered at the sitting on 13 December 1984,