61986J0053

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FISHING - CONSERVATION OF THE RESOURCES OF THE SEA - TECHNICAL CONSERVATION MEASURES - MINIMUM FISH-SIZE - NATIONAL MEASURES STRICTER THAN THE COMMUNITY RULES - AUTHORIZATION - SCOPE

( COUNCIL REGULATION NO 171/83, ART . 20 ( 1 )*)

ARTICLE 20 ( 1 ) OF REGULATION NO 171/83 LAYING DOWN CERTAIN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES, WHICH AUTHORIZES THE MEMBER STATES TO ADOPT, UNDER CERTAIN CONDITIONS, TECHNICAL MEASURES GOING BEYOND THE MINIMUM REQUIREMENTS ADOPTED AT THE COMMUNITY LEVEL, MUST BE INTERPRETED AS MEANING THAT THE WORDS "NATIONAL MEASURES" MEAN ANY NATIONAL MEASURES, IRRESPECTIVE OF THE DATE, WHETHER BEFORE OR AFTER THE ENTRY INTO FORCE OF THE REGULATION, ON WHICH THEY WERE ADOPTED .

A NATIONAL MEASURE PROHIBITING THE FISHERMEN OF THE MEMBER STATE WHICH ADOPTED IT FROM CATCHING FISH SMALLER THAN A MINIMUM SIZE WHICH IS DIFFERENT FROM THAT APPLYING IN OTHER MEMBER STATES IS COVERED BY ARTICLE 20 ( 1 ) OF REGULATION NO 171/83 .

IN CASE 53/86

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ARRONDISSEMENTSRECHTBANK ( DISTRICT COURT ), ZWOLLE, FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

OFFICIER VAN JUSTITIE ( PUBLIC PROSECUTOR ), DISTRICT OF ZWOLLE

AND

LUBBERTJE ROMKES,

JAN KORF,

TEUNIS VARKEVISSER

AND

DIRK BAKKER

ON THE INTERPRETATION OF 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 ),

THE COURT ( FIRST CHAMBER )

COMPOSED OF : F . SCHOCKWEILER, PRESIDENT OF CHAMBER, G . BOSCO AND R . JOLIET, JUDGES,

ADVOCATE GENERAL : C . O . LENZ

REGISTRAR : H . A . RUEHL, PRINCIPAL ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

THE NETHERLANDS GOVERNMENT, BY M . FIERSTRA, ACTING AS AGENT,

THE FRENCH GOVERNMENT, BY REGIS DE GOUTTES, ACTING AS AGENT, AND BY SOPHIE-CAROLINE DE MARGERIE, ACTING AS DEPUTY AGENT, IN THE WRITTEN PROCEDURE,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY ITS LEGAL ADVISER, R . C . FISCHER,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 12 MAY 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON THE SAME DAY,

GIVES THE FOLLOWING

JUDGMENT

1 BY ORDER DATED 23 SEPTEMBER 1985, WHICH WAS RECEIVED AT THE COURT ON 24 FEBRUARY 1986, THE ARRONDISSEMENTSRECHTBANK ( DISTRICT COURT ), ZWOLLE, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF COUNCIL REGULATION 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 THOSE QUESTIONS WERE RAISED IN PROCEEDINGS BROUGHT AGAINST FOUR NETHERLANDS FISHERMEN IN THE ARRONDISSEMENTSRECHTBANK, ZWOLLE, BY THE OFFICIER VAN JUSTITIE ( PUBLIC PROSECUTOR ) FOR THE DISTRICT OF ZWOLLE FOR HAVING CAUGHT PLAICE LESS THAN 27*CM IN LENGTH IN THE NORTH SEA, THEREBY CONTRAVENING THE NETHERLANDS ORDER OF 1 NOVEMBER 1984 "AMENDING THE ORDER IMPLEMENTING THE EEC REGULATION LAYING DOWN TECHNICAL MEASURES ".

3 BY THAT ORDER THE STATE SECRETARY FOR AGRICULTURE AND FISHERIES FIXED THE MINIMUM SIZE OF PLAICE WHICH MAY BE CAUGHT IN THE NORTH SEA AT 27*CM . IN THE EXPLANATORY MEMORANDUM CONCERNING THE ORDER THE STATE SECRETARY INDICATES THAT IT IS ADOPTED PURSUANT TO ARTICLE 20 ( 1 ) OF REGULATION NO 171/83 .

4 THAT REGULATION INTRODUCED VARIOUS TECHNICAL MEASURES FOR PROTECTING THE BIOLOGICAL RESOURCES OF THE SEA, SUCH AS FIXING THE MESH SIZE OF FISHING NETS OR PROHIBITING FISHING FOR CERTAIN FISH IN CERTAIN AREAS AT CERTAIN TIMES . ONE SUCH MEASURE IS THE PROHIBITION LAID DOWN IN ARTICLE 11 ON CATCHING FISH OF LESS THAN THE MINIMUM SIZE LAID DOWN IN ANNEX 5 TO THE REGULATION . THE MINIMUM SIZE FOR PLAICE IS 25*CM .

5 ARTICLE 20 ( 1 ) OF THE REGULATION STATES THAT : "THIS REGULATION SHALL APPLY WITHOUT PREJUDICE TO NATIONAL TECHNICAL MEASURES, GOING BEYOND ITS MINIMUM REQUIREMENTS, WHICH ARE APPLICABLE ONLY TO FISHERMEN OF THE MEMBER STATE CONCERNED AND WHICH EITHER ARE INTENDED TO ENSURE BETTER MANAGEMENT AND BETTER USE OF THE QUOTAS OR WHICH APPLY TO SPECIES NOT SUBJECT TO QUOTAS OR TO SPECIES FOR WHICH THIS REGULATION LAYS DOWN NO SPECIFIC MEASURES, PROVIDED THAT THEY ARE COMPATIBLE WITH COMMUNITY LAW AND ARE IN CONFORMITY WITH THE COMMON FISHERIES POLICY ". ARTICLE 20 ( 2 ) PROVIDES THAT : "THE NATIONAL MEASURES REFERRED TO IN PARAGRAPH 1 SHALL BE COMMUNICATED TO THE COMMISSION IN ACCORDANCE WITH ARTICLE 2 ( 2 ) OF COUNCIL REGULATION ( EEC ) NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY" ( OFFICIAL JOURNAL 1976, L 20, P . 19 ).

6 THE PURPOSE OF REGULATION NO 101/76, TO WHICH REGULATION NO 171/83 REFERS, IS TO IMPLEMENT A COMMON STRUCTURAL POLICY IN THE FISHING INDUSTRY BY COORDINATING NATIONAL POLICIES AND BY THE EXCHANGE OF INFORMATION BETWEEN THE MEMBER STATES AND THE COMMISSION . ARTICLE 2 ( 2 ) OF THAT REGULATION PROVIDES THAT MEMBER STATES ARE TO NOTIFY THE OTHER MEMBER STATES AND THE COMMISSION OF THEIR EXISTING LAWS AND ADMINISTRATIVE RULES AND REGULATIONS IN RESPECT OF FISHING .

7 IN THOSE CIRCUMSTANCES THE NATIONAL COURT CONSIDERED THAT THE CASE BEFORE IT RAISED QUESTIONS CONCERNING THE INTERPRETATION OF COMMUNITY LAW . IT THEREFORE REFERRED THE FOLLOWING TWO QUESTIONS TO THE COURT :

"1 . DOES ARTICLE 20 ( 1 ) OF REGULATION ( EEC ) NO 171/83 EMPOWER A MEMBER STATE TO ADOPT, EVEN AFTER THE ENTRY INTO FORCE OF THAT REGULATION, TECHNICAL MEASURES FOR ITS FISHING INDUSTRY GOING BEYOND THE MINIMUM REQUIREMENTS OF THAT REGULATION?

2 . IS A MEASURE REQUIRING NETHERLAND FISHERMEN TO OBSERVE A MINIMUM SIZE OF 27*CM FOR PLAICE COMPATIBLE WITH COMMUNITY LAW AND IN CONFORMITY WITH THE COMMON FISHERIES POLICY?"

8 FOR A FULLER ACCOUNT OF THE FACTS, THE RELEVANT PROVISIONS OF COMMUNITY LAW AND A SUMMARY OF THE OBSERVATIONS SUBMITTED BY THE NETHERLANDS GOVERNMENT, THE FRENCH GOVERNMENT AND THE COMMISSION, REFERENCE IS MADE TO THE REPORT FOR THE HEARING .

THE FIRST QUESTION

9 AS REGARDS THE FIRST QUESTION, THE NATIONAL COURT EXPLAINS IN ITS ORDER FOR REFERENCE THAT IT IS UNCERTAIN WHETHER ARTICLE 20 ( 1 ) OF REGULATION NO 171/83 SHOULD BE INTERPRETED AS MEANING THAT IT ALLOWS ONLY STRICTER NATIONAL RULES IN FORCE AT THE TIME OF THE ADOPTION OF THAT REGULATION TO BE MAINTAINED OR THAT IT ALSO ALLOWS A MEMBER STATE TO ADOPT SUCH RULES IN THE FUTURE .

10 IT SHOULD BE POINTED OUT FIRST OF ALL IN THIS REGARD THAT THE WORDING OF ARTICLE 20 ( 1 ) OF REGULATION NO 171/83 MAKES NO DISTINCTION BETWEEN NATIONAL TECHNICAL MEASURES IN EXISTENCE WHEN THAT REGULATION WAS ADOPTED AND MEASURES ADOPTED LATER .

11 IT MUST ALSO BE POINTED OUT THAT AN OBLIGATION TO NOTIFY NATIONAL MEASURES ON FISHING WAS ALREADY PROVIDED FOR IN REGULATION NO 101/76 . THE FACT THAT THE SAME OBLIGATION IS LAID DOWN IN ARTICLE 20 ( 2 ) OF REGULATION NO 171/83 THEREFORE SHOWS THAT THE NATIONAL MEASURES ENVISAGED THEREIN MAY HAVE BEEN ADOPTED AFTER THE ENTRY INTO FORCE OF THAT REGULATION SINCE MEASURES ALREADY IN EXISTENCE HAD TO BE NOTIFIED IN ACCORDANCE WITH REGULATION NO 101/76 .

12 IT MUST THEREFORE BE CONCLUDED THAT ARTICLE 20 ( 1 ) OF REGULATION NO 171/83 MUST BE INTERPRETED AS MEANING THAT THE WORDS "NATIONAL MEASURES" MEAN ANY NATIONAL MEASURES, IRRESPECTIVE OF THE DATE ON WHICH THEY WERE ADOPTED .

THE SECOND QUESTION

13 IN ITS SECOND QUESTION THE NATIONAL COURT IS ESSENTIALLY ASKING WHETHER A NATIONAL MEASURE PROHIBITING THE FISHERMEN OF THE MEMBER STATE WHICH ADOPTED IT FROM CATCHING FISH SMALLER THAN A MINIMUM SIZE WHICH IS DIFFERENT FROM THAT APPLYING IN THE OTHER MEMBER STATES IS COVERED BY ARTICLE 20 ( 1 ) OF REGULATION NO*171/83 .

14 IN THIS REGARD, IT MUST BE POINTED OUT FIRST OF ALL THAT THE FACT THAT ARTICLE 20 ( 1 ) OF REGULATION NO 171/83 ALLOWS THE MEMBER STATES TO ADOPT TECHNICAL MEASURES STRICTER THAN THOSE LAID DOWN IN THE REGULATION IMPLIES THAT THOSE MEASURES MAY DIFFER FROM ONE MEMBER STATE TO ANOTHER .

15 SECONDLY, STRICTER NATIONAL REQUIREMENTS ARE ALLOWED UNDER ARTICLE 20 ( 1 ) ONLY IF THOSE REQUIREMENTS APPLY ONLY TO THE FISHERMEN OF THE MEMBER STATE CONCERNED .

16 THIRDLY, THE NATIONAL MEASURES ALLOWED UNDER ARTICLE 20 ( 1 ) MUST BE INTENDED TO ENSURE BETTER MANAGEMENT OR BETTER USE OF THE QUOTAS . THAT IS THE CASE WITH A MEASURE LIKE THAT IN QUESTION, SINCE, ACCORDING TO THE EXPLANATIONS GIVEN TO THE COURT BY THE NETHERLANDS GOVERNMENT, WHICH HAVE NOT BEEN CONTRADICTED, THE USE OF PLAICE MEASURING 25*CM IN THE HANDLING AND PROCESSING INDUSTRIES LEADS TO TOO MUCH WASTAGE .

17 FINALLY, IT IS CLEAR FROM THE ORDER FOR REFERENCE THAT THE NATIONAL COURT DOES NOT CALL IN QUESTION THE COMPATIBILITY OF REGULATION NO 171/83 ITSELF WITH THE RULES OF THE TREATY . IN THE GROUNDS FOR ITS ORDER, THE NATIONAL COURT STATES THAT IT "IS INCLINED TO ACCEPT THAT IF ARTICLE 20 OF REGULATION NO 171/83 EMPOWERS THE MEMBER STATES TO ADOPT STRICTER TECHNICAL MEASURES FOR THEIR OWN FISHERMEN, THE NETHERLANDS MEASURE FIXING A MINIMUM SIZE OF 27*CM FOR PLAICE IS COMPATIBLE WITH COMMUNITY LAW IF THAT MEASURE IS AT LEAST BASED ON REGULATION NO 171/83 AND SERVES OR MAY SERVE TO CONSERVE FISH STOCKS ".

18 IN VIEW OF THE FOREGOING, THE ANSWER TO BE GIVEN TO THE ARRONDISSEMENTSRECHTBANK, ZWOLLE, MUST BE THAT A NATIONAL MEASURE PROHIBITING THE FISHERMEN OF THE MEMBER STATE WHICH ADOPTED IT FROM CATCHING FISH SMALLER THAN A MINIMUM SIZE WHICH IS DIFFERENT FROM THAT APPLYING IN OTHER MEMBER STATES IS COVERED BY ARTICLE 20 ( 1 ) OF REGULATION NO 171/83 .

COSTS

19 THE COSTS INCURRED BY THE NETHERLANDS GOVERNMENT, THE FRENCH GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, 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, 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 questions submitted to it by the Arrondissementsrechtbank, Zwolle, by order of 23 September 1985, hereby rules :

( 1 ) Article 20 ( 1 ) of Council Regulation No 171/83 of 25 January 1983 must be interpreted as meaning that the words "national measures" mean any national measures, irrespective of the date on which they were adopted .

( 2 ) A national measure prohibiting the fishermen of the Member State which adopted it from catching fish smaller than a minimum size which is different from that applying in other Member States is covered by Article 20 ( 1 ) of Council Regulation No 171/83 of 25 January 1983 .