C-348/88

Mr President, The question arising in the main Members of the Court, proceedings on the basis of which the national court has raised a number of questions for a preliminary ruling is whether the procedure followed by the inspectors in measuring the net was lawful. 1. The questions submitted for a preliminary ruling by the Amtsgericht Bremerhaven (Local Court, Bremerhaven) require the Court to clarify a number of 3. Before looking more closely at the Community rules laying down the dispute between the parties I shall recall the inspection procedure to be followed when relevant rules. Council Regulation (EEC) the mesh size of fishing nets are checked. No 3094/86 1 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 Background 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). 2. The facts giving rise to the main Article 3 provides that the technical rules for proceedings may be summarized as follows. the determination of mesh size are to be On 4 June 1987 the cutter of Dutch skipper drawn up in accordance with the Jelle Hakvoort was inspected in the North Management Committee procedure. 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 The relevant rules for measurement are found that the meshes of the net were contained in Commission Regulation (EEC) smaller than the minimum mesh size for that No 2108/84 laying down detailed rules for area of the North Sea laid down in determining the mesh size of fishing nets. 2 Community law, namely 80 mm. As a result This regulation contains rules relating to the of the prosecution brought on the basis of this inspection, Captain Hakvoort was 1 — Council Regulation (EEC) No 3094/86 of 7 October 1986 sentenced on 26 June 1987 by the Staatliche laying down certain technical measures for the conser- vation of fishery resources (OJ 1986, L 288, p. 1). Fischereiamt (State Fisheries Office) in 2 — Commission Regulation (EEC) No 2108/84 of 23 July Bremerhaven to a fine of DM 22 000, the 1984 (OJ 1984, L 194, p. 22). That regulation is formally based on Council Regulation (EEC) No 171/83 of 25 proceeds (amounting to DM 11 600) of the January 1983 laying down certain technical measures for the conservation of fishery resources (OJ 1983, L 24, forced sale of the fish confiscated on 4 June p. 14). Regulation No 171/83 was, however, repealed by 1987 were declared forfeit and Captain Anicie 16 of Regulation (EEC) No 3094/86 but that aniele goes on to provide that all references to Regulation Hakvoort's port net was impounded. No 171/83 are to be construed as references to Regulation No 3094/86. The terms of Anicie 6 of Regulation N o 171/83 are now contained in Anicie 3 of Regulation N o * Original language: Dutch. 3094/86.

5. Captain Hakvoort challenged before the 2. If the captain of the vessel contests national court the fine imposed on him by the mesh size determined in accordance the Staatliche Fischereiamt. He is of the with paragraph 1, such measurement will opinion that the offence alleged against him not be considered for the determination of cannot be based on the measurements made the mesh size and the net shall be measured. by the inspectors, on the ground that they A weight or dynamometer attached to the gauge shall be used for remeasurement. 3 — In the order for reference it is stated: 'Der Kapitän... hatte einer Handmessung nicht wider- sprochen' (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 resultof the manual measurement.

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did not adhere strictly to the measuring nature of the relevant provisions. Moreover, procedure laid down in Article 6 of Regu- the German courts of first instance lation (EEC) No 2108/84. The national apparently make no distinction between the court is inclined to the view taken by results of measurements obtained manually Captain Hakvoort, but, before giving and those obtained using a weight, since judgment, wishes to obtain from the Court they regard the results of both methods of of Justice a preliminary ruling on three measurement as factual elements whose questions. Those questions may be evidential value may be freely assessed by summarized as follows: the courts.

(2) Is the sequence of measurement The question of competence methods laid down in Anicie 6 (first manual measurement of three series of 20 meshes, then measurement with a 6. The Bremen Public Prosecutor's Office weight or a dynamometer but only if acknowledges that the Community is the captain contests the first competent in fishery matters to define the measurement) binding on the substantive elements of an offence. It denies, inspectors? 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 (3) Are the provisions of Regulation (EEC) minimum mesh sizes) can also be No 2108/84 intended also to provide determined by rules of Community law. legal protection for the captain of the vessel inspected?' In assessing the legislative competence of the Community, account must be taken of the extent of the Community's responsibility With these questions (for the full text for elaborating policy in a given area. As is thereof I refer to the Report for the well known, the Community has enjoyed Hearing) the national court seeks to exclusive competence since 1977 as regards ascertain the implications under Community the conservation of fishery resources. law for the captain of the vessel inspected of Moreover, the Court has held in that connection that, even in the event of a a failure by the inspectors to adhere to the failure to act by the Council, the Member measuring procedure laid down in Regu- States have no unilateral legislative lation No 2108/84. Captain Hakvoort's competence in this field. 4 observations underline the importance of the determination of this question. There is 4 — Sec the Judgments of 14 July 1976 in Joined Cases 3, 4 and said to be no unanimity amongst the 6/76 Cornells Kramer and Others [1976] ECR 1279, inspection services of a number of Lander of paragraph 41, and of 5 May 1981 in Case 804/79 Commission v United Kingdom [1981] ECR 1045, para- the Federal Republic as to the mandatory graphs 17 to 20.

Answering the preliminary questions

7. With specific reference to Regulation No 2108/84, the matter may be explained as 8. The reply to the first and the third follows. Establishing an infringement of the questions does not present any particular rules relating to mesh size is a complex difficulty. A simple reading of the applicable matter in which the type of measuring rules clearly shows that the rules on gauge used, the actual use of the measuring inspection contained in Regulation No gauge and the selection of the meshes to be 2108/84 give effect to Article 3 of Regu- measured are of crucial importance (see also lation No 3094/86, which requires technical paragraph 8 below). This shows that in the rules to be laid down for the measurement present case there is in fact a close of the mesh size of nets. The wording and connection between the rules which define the objective of Regulation No 2108/84 the substantive elements of the offence and (the preamble to the regulation expressly relates rules for determining mesh size to 5 — Moreover, Mr Hakvoort's legal representative stated at the the conservation of fishery resources) admit hearing that earlier German rules on the measuring p rocedure to be followed in establishing the mesh size of of no doubt that the mesh size of a net can fishingnets were repealed around 1978 (the transitional only be determined in accordance with the period for the entry into force of the exclusive competence of the Community as regards the conservation of the rules laid down in that regulation. In its marine biological resources, referred to in Article 102 of the Act of Accession of 1972, expired on 1 January 1979). observations, the Commission rightly points

out the many complex problems which may manual measurement), it appears from the arise in regard to the measurement of a net: wording of Regulation No 2108/84 (see only meshes which are a certain distance paragraph 3, above) that measurement using from the edge of the net or from a lacing a weight or a dynamometer may only take may be measured (Article 3(2)); meshes place if the captain contests the result of the which are broken or to which attachments manual measurement. That provision, it have been fixed may not be measured seems to me, is clearly inspired by a concern (ibid.); nets may be measured only when to check the reliability of an infringement wet and unfrozen (Article 3(4)). The rules established by means of a manual contained in Article 6 of that regulation measurement with a view to discharging the must also be read in that light: the captain where he raises an objection. 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 1 000 meshes of which only a small percentage are in fact measured. In the interests of the 9. There remains the second question: may captain of the vessel inspected it was an inspector depart from the sequence laid therefore decided that, where the average of down in Anicle 6 of Regulation No the first series of 20 meshes is less than the 2108/84 by omitting the manual prescribed minimum mesh size, that measurement and carrying out only a measurement should be supplemented by measurement using a weight or a dyna- two new series of 20 meshes. On the basis mometer, or by desisting from manual of all the foregoing it seems to me that the mesh size of a net must be determined in measurement after the first series of 20 (strict) accordance with the abovementioned meshes? In order to reply to this question I rules. 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 regu- Since the establishment of an insufficient lation. I prefer, however, to explain this mesh size generally leads to the institution position on the basis of the underlying of criminal proceedings against the meaning of Article 6 of Regulation No captain, 6 it is self-evident that the rules 2108/84, as outlined in the Commission's contained in Regulation No 2108/84 for observations and clarified at the hearing. establishing such an infringement are also intended to protect the captain. As regards, specifically, the rule not adhered to by the inspectors (namely priority to be given to

edges by the resistance of the mesh (Article cation of the results obtained by manual 2(3) in conjunction with Article 4 of Regu- measurement. In fact, only if the captain lation No 2108/84). Manual insertion must contests the result of the manual be carried out for a series of 20 generally measurement is use made of a weight or different meshes. The uncertainty as to the dynamometer, the result thus obtained precise manual force to be used can be elim- superseding the first result. That signifies in inated if the gauge is inserted into the net my view that, if the manual measurement of using a weight or a dynamometer. In its an initial series of 20 meshes reveals a observations, the Commission pointed out possible infringement, the measurement that that method was not initially chosen must be continued manually. Otherwise, it because it is much more complicated and could happen that the captain, owing to therefore more time-consuming. That is inadequate information and thus with insuf- why it was decided to use that method only ficient knowledge of the situation, does not if the captain of the vessel contests the insist on a measurement which, if it had results of the manual measurement (of three been carried on, would have produced a series of 20 meshes). Furthermore, result more favourable to him. measurement with a weight or dyna- mometer is difficult to carry out on a vessel in movement on the high seas and in those circumstances is not necessarily more accurate than manual measurement. Accordingly, the argument put forward by the Bremen Public Prosecutor's Office according to which measurement with a 10. I therefore conclude that the inspector weight or a dynamometer is always to the is obliged to carry out an inspection of the advantage of the captain, that is to say it mesh size in strict compliance with the affords him greater legal certainty, and for procedure laid down in Article 6 of Regu- that reason he may not challenge the lation No 2108/84. In other words, he must suspension or omission of manual first measure a series of 20 meshes measurement, is incorrect. As I understand manually. Should this initial measurement it, that is only the case where measurement indicate that the mesh size is too small, he with a weight or dynamometer is carried should, at a second stage, measure two out after the vessel has put into harbour, further series of meshes manually. The which happened in this case (see paragraph result of the measurement carried out in 4 above) but this is not stipulated in Regu- that way is to be disregarded only if the lation No 2108/84 because, I assume, it captain challenges it and then, in a third would be yet more time-consuming. stage, the mesh size of the net is determined on the basis of a series of 20 meshes with a weight or dynamometer.

'(1) Article 2(1) of Regulation (EEC) No 3094/86 must be interpreted as meaning that mesh size within the meaning of that paragraph can only be regarded as the mesh size determined in strict accordance with the provisions of Regu- lation (EEC) No 2108/84.

(2) The provisions of Regulation (EEC) N o 2108/84, and more specifically Article 6 thereof, are also intended to afford legal protection to the captain of the vessel inspected.

(3) When inspecting the mesh size of a net pursuant to Article 2 of Regulation (EEC) No 3094/86, the inspector is required to adhere strictly to the measuring sequence laid down in Article 6 of Regulation (EEC) No 2108/84. That means that the mesh size of a net must first be determined by the manual measurement of 20 or, if necessary, 60 meshes, and that measurement with a weight or a dynamometer may not (and must not) take place until the manual measurement has been fully completed and only if the captain contests the result of the manual measurement.'

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