Report for the Hearing delivered in Case C-348/88
I — Facts and procedure
On 4 June 1987, German officials responsible for fisheries inspection in the North Sea inspected Mr Hakvoort's boat. The inspection concerned the mesh size of the nets.
In accordance with Article 2(1) and Annex 1 to Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (Official Journal 1986, L 288, p. 1), minimum mesh sizes for nets were fixed at 80 mm for fishing in the North Sea.
Article 5 of Commission Regulation (EEC) No 2108/84 of 23 July 1984 laying down detailed rules for determining the mesh size of fishing nets (Official Journal 1984, L 194, p. 22) provides that: The mesh size of the net shall be the arithmetical mean in millimetres of the measurements of the total number of meshes selected and measured ... . Article 6 of that regulation describes the sequence of the inspection procedure as follows:
According to the findings of the national court, the inspectors carried out several inspections. First, 20 meshes were manually measured. That initial inspection showed that the meshes were less than the 80 mm prescribed by Regulation No 3094/86. A second measurement of 20 additional meshes using a gauge with a 5 kilogram weight revealed a mesh measurement of 73 mm, which was less than the minimum laid down.
The inspectors then ordered Mr Hakvoort to enter the Port of Cuxhaven where they carried out a third measurement of 20 meshes using a gauge with a 5 kilogram weight, the method which they used to carry out the second measurement. The third inspection revealed a mesh measurement of 76 mm, which was also below the minimum laid down.
The Staatliche Fischereiamt (State Fisheries Office), Bremerhaven, imposed on Mr Hakvoort a fine of DM 22000 for infringing the legislation on mesh sizes. It also ordered the confiscation of both the fish and the nets.
Mr Hakvoort challenged that decision before the Amtsgericht (Local Court) Bremerhaven, on the ground that the measurements carried out could not constitute evidence of an infringement. The inspectors, he said, did not adhere to the procedure laid down in Article 6 of Regulation No 2108/84 since they made the measurements using the weight without first manually measuring 60 meshes, as provided for in that provision.
The Staatliche Fischereiamt contended that the means of measurement used by the inspectors was not open to challenge. The inspectors were entitled to decide, at any time, to carry out a measurement using a weight. That method is more accurate than manual measurement and is more favourable to the captain because the use of weights further enlarges the mesh.
Taking the view that the dispute involved an interpretation of the Community rules, the Amtsgericht Bremerhaven, by order of 25 October 1988, decided to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions:
The order of the Amtsgericht Bremerhaven was received at the Court Registry on 29 November 1988.
Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted on 28 February 1989 by the Commission of the European Communities, represented by Mr Booß, acting as Agent, on 9 March 1989 by J. Hakvoort, represented by Mr Peltzer, of the Bremen Bar, and on 10 March 1989 by the Staatsanwaltschaft (Public Prosecutor's Office) Bremen, represented by Mr Bohlen, of the Bremen Public Prosecutor's Office.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
Pursuant to Article 95(1) and (2) of the Rules of Procedure, the Court, by order of 6 December 1989, assigned the case to the First Chamber.
II — Written observations submitted to the Court
The first question (applicable rules)
The Staatsanwaltschaft Bremen (hereinafter referred to as the Bremen Public Prosecutor's Office) considers that the procedural provisions relating to the inspection of nets cannot be contained in a Community regulation such as Regulation No 2108/84, since the Community is not competent to lay down rules on evidence in the context of national penal or administrative proceedings.
The European Community is competent only to enact substantive fisheries law. Thus it was entitled to determine the matters constituting an infringement, in this case the requirements relating to the mesh size of nets. On the other hand, the Commission is not competent to establish the inspection procedure to be observed by the national authorities in order to ensure that the nets are in conformity.
Consequently, the Bremen Public Prosecutor's Office suggests that the Court should dismiss the reference for a preliminary ruling as inadmissible on the ground that the questions formulated by the national court relate to rules which are null and void.
Mr Hakvoort and the Commission propose that the reply to be given should be that mesh size within the meaning of Article 2(1) of Regulation No 3094/86 is solely the mesh size determined in strict accordance with the procedure provided for in Regulation No 2108/84.
Council Regulation No 3094/86 provides in Article 2 thereof that it is prohibited to use nets whose mesh size is less than the minimum mesh size listed in the annex. According to Article 3 thereof, the Commission is to determine the technical rules for the determination of mesh size. Those rules, contained in Regulation No 2108/84, are adopted on the basis 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), which was replaced by Regulation No 3094/86.
The second question (conduct of the inspections)
In the event that Regulation No 2108/84 is valid, the Bremen Public Prosecutor's Office considers that Article 6 thereof is to be interpreted as meaning that the inspecting authority may at any time desist from manual measurement and replace it by a measurement using a weight, in particular when the net is manifestly illegal. Manual measurement represents a permissible relaxation of the procedure provided for in favour of the inspecting authority. That authority may in fact limit itself to manual measurement which is easier to carry out but less accurate than measurements carried out with the aid of a weight. Moreover, it is only if the captain objects that the inspectors should carry out the measurement with the aid of a weight.
Moreover, even on the assumption that manual measurement must be carried out in each case, the Amtsgericht Bremen, may decide, as a matter of German law of criminal procedure, that the allegedly unlawfully obtained evidence may be used.
Finally, the national court could also carry out further measurements, according to the method which it deems fit, since the net has been seized.
Mr Hakvoort submits that a national administrative practice on the determination of mesh sizes that is different from the procedure described in Regulation No 2108/84 is prohibited, discriminatory and superfluous: prohibited because the inspection procedure is laid down in a regulation, so that national authorities may not depart from the rules provided for therein without contravening the principle of the primacy of Community rules; discriminatory in the sense that fishermen are subject to different rules depending on the waters in which they are operating; superfluous because the Community has adopted rules which are complete in this respect.
As regards the inspection procedure described in Article 6 of Regulation No 2108/84, Mr Hakvoort maintains that a completed manual measurement is a precondition for carrying out an inspection with the aid of a weight. First, manual measurement cannot be considered arbitrary since it is subject to specific rules set out in Article 2 of Regulation No 2108/84. Also, a prior manual inspection is necessary because it is only when the captain objects to the first measurements that the inspectors must carry out a measurement using a weight. Moreover, nothing in the regulation at issue warrants the assertion that the Community legislature sought to give preference to one rather than to the other of the two inspection methods. Finally, prior use of the manual method is justified by practical necessities since that inspection is quicker than an inspection using a weight.
The Commission considers that the sequence of inspection procedures laid down in Article 6 of Regulation No 2108/84 must be observed by the national authorities. On the one hand, the two methods of measurement do not necessarily lead to the same result. On the other hand, measurement using a weight is not necessarily more favourable to the captain than manual measurement.
The Commission sets out the advantages and drawbacks of the two methods of measurement.
One advantage of the manual method is that it enables a greater number of meshes to be measured in a short period of time, which widens the basis of calculation for determining the average mesh size. On the other hand, that method is inaccurate because the measurement depends on the degree of force used by the inspector when inserting the gauge into the mesh.
On the other hand, the method of measurement using a weight is more accurate, but not very practical, particularly at sea, since it takes longer to carry out. That drawback prompted the Commission to limit measurement using a weight to a series of 20 meshes.
Finally, the Commission adds that, in the interests of the conservation of fishery resources and the swiftness of inspections, the inspector should first carry out a manual measurement of an initial series of 20 meshes. Then, when the initial measurement has disclosed that the mesh size is inadequate, the inspector should carry out a manual measurement of two further series of 20 meshes, this time in the interests of the fisherman and the swiftness of the inspection. Finally, if the mesh size still appears to be illegal, the inspector should, in the fisherman's interest, carry out a third measurement with the aid of a weight, in order to eliminate the subjective element of manual measurement — the force with which the gauge is inserted.
The third question (protection of the captain)
The Bremen Public Prosecutor's Office maintains that the provisions of Regulation No 2108/84 were not adopted in order to protect the captain whose nets are inspected. They were intended solely to ensure the protection of fishery resources.
According to Mr Hakvoort and the Commission, the provisions of Regulation No 2108/84 are also intended to protect the captain of the vessel inspected, inasmuch as such inspection may lead to the instigation of criminal or administrative proceedings against the captain.
The repetition of the measurements on different meshes, first manually, then with a weight, ensures such protection, since it enables a more representative assessment of the mesh size to be obtained.
1 Language of the case: German.