Opinion of Mr Advocate General Van Gerven delivered on 20 February 1990

1 Original language: Dutch.

2 Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (OJ 1986, L 288, p. 1).

3 Commission Regulation (EEC) No 2108/84 of 23 July 1984 (OJ 1984, L 194, p. 22). That regulation is formally based on Council Regulation (EEC) No 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources (OJ 1983, L 24, p. 14). Regulation No 171/83 was, however, repealed by Article 16 of Regulation (EEC) No 3094/86 but that aniele goes on to provide that all references to Regulation No 171/83 are to be construed as references to Regulation No 3094/86. The terms of Article 6 of Regulation No 171/83 are now contained in Article 3 of Regulation No 3094/86.

4 In the order for reference it is stated: Der Kapitän... hatte einer Handmessung nicht widersprochen (The captain ... had not objected to a manual measurement). At the hearing Captain Hakvoort's legal representative explained that that sentence meant that Captain Hakvoort did not challenge the result of the manual measurement.

5 Sec the Judgments of 14 July 1976 in Joined Cases 3, 4 and 6/76 Cornells Kramer and Others [1976] ECR 1279, paragraph 41, and of 5 May 1981 in Case 804/79 Commission v United Kingdom [1981] ECR 1045, paragraphs 17 to 20.

6 Moreover, Mr Hakvoort's legal representative stated at the hearing that earlier German rules on the measuring procedure to be followed in establishing the mesh size of fishing nets were repealed around 1978 (the transitional period for the entry into force of the exclusive competence of the Community as regards the conservation of the marine biological resources, referred to in Article 102 of the Act of Accession of 1972, expired on 1 January 1979).

7 The Member Slates are in fact required under Article 1 of Council Regulation (EEC) No 2241/87 of 23 July 1987 (OJ 1987, L 207, p. 1) to keep adequate checks on the conservation of fishery resources and to penalize infringements, either by administrative or criminal sanctions. Case C-64/88 Commission v France, still pending before the Court, concerns the fulfilment of this obligation.