Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. The questions submitted for a preliminary ruling by the Amtsgericht Bremerhaven (Local Court, Bremerhaven) require the Court to clarify a number of Community rules laying down the inspection procedure to be followed when the mesh size of fishing nets are checked.
Background
2. The facts giving rise to the main proceedings may be summarized as follows. On 4 June 1987 the cutter of Dutch skipper Jelle Hakvoort was inspected in the North Sea by three German inspectors. The inspection related to the mesh size of the nets on board the cutter. On measuring the lower section of the port net, the inspectors found that the meshes of the net were smaller than the minimum mesh size for that area of the North Sea laid down in Community law, namely 80 mm. As a result of the prosecution brought on the basis of this inspection, Captain Hakvoort was sentenced on 26 June 1987 by the Staatliche Fischereiamt (State Fisheries Office) in Bremerhaven to a fine of DM 22000, the proceeds (amounting to DM 11600) of the forced sale of the fish confiscated on 4 June 1987 were declared forfeit and Captain Hakvoort's port net was impounded.
3. Before looking more closely at the dispute between the parties I shall recall the relevant rules. Council Regulation (EEC) No 3094/86 lays down a number of technical provisions in order to protect marine biological resources and to ensure the balanced exploitation of fishery resources. Title 1 thereof relates to fishing nets and the use thereof. That title lays down minimum mesh sizes and prohibits nets from being kept on board with mesh sizes which are smaller than the prescribed minimum size (Article 2 of the regulation). Article 3 provides that the technical rules for the determination of mesh size are to be drawn up in accordance with the Management Committee procedure.
4. In actual fact (the parties to the main proceedings agree on this point) the procedure adopted in inspecting Captain Hakvoort's net was as follows. The inspectors manually measured one series of 20 meshes; the result of that measurement showed that the meshes of the net were too small. Manual measurement was then discontinued and the inspectors attached a 5 kg weight to the measuring gauge by means of which a further 20 meshes were measured. Captain Hakvoort did not challenge the result of the manual measurement, which is required by Article 6(2) as a pre-condition for not taking into consideration the result of the first measurement (of three times 20 meshes) and for going over to measurement using a weight or dynamometer. Even after the measurement with a weight the mesh size of the nets appeared to be too small. Thereupon Captain Hakvoort was ordered to put into the port of Cuxhaven, where some hours later 20 meshes of the port net were again measured using a weight. This measurement showed an average mesh size which was still too small, namely 76 mm.
5. Captain Hakvoort challenged before the national court the fine imposed on him by the Staatliche Fischereiamt. He is of the opinion that the offence alleged against him cannot be based on the measurements made by the inspectors, on the ground that they did not adhere strictly to the measuring procedure laid down in Article 6 of Regulation (EEC) No 2108/84. The national court is inclined to the view taken by Captain Hakvoort, but, before giving judgment, wishes to obtain from the Court of Justice a preliminary ruling on three questions. Those questions may be summarized as follows:
The question of competence
6. The Bremen Public Prosecutor's Office acknowledges that the Community is competent in fishery matters to define the substantive elements of an offence. It denies, however, that the procedure to be followed in establishing infringements of the rules relating to the conservation of fishery resources (including the rules relating to minimum mesh sizes) can also be determined by rules of Community law.
7. With specific reference to Regulation No 2108/84, the matter may be explained as follows. Establishing an infringement of the rules relating to mesh size is a complex matter in which the type of measuring gauge used, the actual use of the measuring gauge and the selection of the meshes to be measured are of crucial importance (see also paragraph 8 below). This shows that in the present case there is in fact a close connection between the rules which define the substantive elements of the offence and those which govern the establishment thereof. It seems to me therefore that the Community is indeed competent to adopt rules on measurement of the type contained in Regulation No 2108/84 to be adhered to by national inspectors. Captain Hakvoort rightly points out in his observations that the provisions of Regulation No 2108/84 are intended to prevent the application of different national provisions on measurement from leading to unfairness in cases where persons are penalized. That consideration is particularly relevant in the case of an activity such as sea fishing, which by its nature involves the crossing of frontiers.
Answering the preliminary questions
8. The reply to the first and the third questions does not present any particular difficulty. A simple reading of the applicable rules clearly shows that the rules on inspection contained in Regulation No 2108/84 give effect to Article 3 of Regulation No 3094/86, which requires technical rules to be laid down for the measurement of the mesh size of nets. The wording and the objective of Regulation No 2108/84 (the preamble to the regulation expressly relates rules for determining mesh size to the conservation of fishery resources) admit of no doubt that the mesh size of a net can only be determined in accordance with the rules laid down in that regulation. In its observations, the Commission rightly points out the many complex problems which may arise in regard to the measurement of a net: only meshes which are a certain distance from the edge of the net or from a lacing may be measured (Article 3(2)); meshes which are broken or to which attachments have been fixed may not be measured (ibid.); nets may be measured only when wet and unfrozen (Article 3(4)). The rules contained in Article 6 of that regulation must also be read in that light: the measurement of a series of meshes is to allow an average mesh size to be calculated and thus to enable differences between the meshes to be to some extent disregarded. A net has almost always more than 1000 meshes of which only a small percentage are in fact measured. In the interests of the captain of the vessel inspected it was therefore decided that, where the average of the first series of 20 meshes is less than the prescribed minimum mesh size, that measurement should be supplemented by two new series of 20 meshes. On the basis of all the foregoing it seems to me that the mesh size of a net must be determined in (strict) accordance with the abovementioned rules.
9. There remains the second question: may an inspector depart from the sequence laid down in Anicle 6 of Regulation No 2108/84 by omitting the manual measurement and carrying out only a measurement using a weight or a dynamometer, or by desisting from manual measurement after the first series of 20 meshes? In order to reply to this question I may also refer to the explanations in the preceding paragraph: since the finding that the mesh size of a net is too small normally leads to criminal proceedings being brought against the captain and since the rules contained in Regulation No 2108/84 are also intended to protect the captain, the official carrying out the inspection is required strictly to adhere to the measuring sequence laid down in Article 6 of the regulation. I prefer, however, to explain this position on the basis of the underlying meaning of Article 6 of Regulation No 2108/84, as outlined in the Commission's observations and clarified at the hearing.
10. I therefore conclude that the inspector is obliged to carry out an inspection of the mesh size in strict compliance with the procedure laid down in Article 6 of Regulation No 2108/84. In other words, he must first measure a series of 20 meshes manually. Should this initial measurement indicate that the mesh size is too small, he should, at a second stage, measure two further series of meshes manually. The result of the measurement carried out in that way is to be disregarded only if the captain challenges it and then, in a third stage, the mesh size of the net is determined on the basis of a series of 20 meshes with a weight or dynamometer.
Conclusion
11. I propose that the Court should give the following reply to the questions submitted for a preliminary ruling by the Amtsgericht Bremerhaven:
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.