CELEX: 62001CJ0265
Origin of a fishery product
Article 28 EC
National legislation imposing a periodic prohibition on the landing of certain fish catches
Competence of the Member States

By judgment of 28 June 2001, received at the Court on 5 July 2001, the Tribunal de grande instance (Regional Court) de Dinan,
exercising its criminal jurisdiction, referred to the Court for a preliminary ruling under Article 234 EC two questions on
the interpretation of Council Regulation No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302,
p. 1,
the Customs Code) and of Article 28 EC.
Those questions were raised in the context of criminal proceedings against Annie Pansard and Others, who are alleged to have
committed the offence of landing scallops during a prohibited period.
Legal context
Community legislation
The legislation concerning the origin of the products
The Customs Code, which defines the origin of goods subject to the Community customs legislation, provides, in Article 23:
1.
Goods originating in a country shall be those wholly obtained or produced in that country.
2.
The expression
goods wholly obtained in a country means:
...
(e)
products of hunting or fishing carried on therein;
(f)
products of sea-fishing and other products taken from the sea outside a country's territorial sea by vessels registered or
recorded in the country concerned and flying the flag of that country;
...
3.
For the purposes of paragraph 2, the expression
country covers that country's territorial sea.
Article 4(2)(f) of Regulation No 802/68 of the Council of 27 June 1968 on the common definition of the concept of the origin
of goods (OJ, English Special Edition 1968 (I), p. 165), which was repealed by the Code, included amongst
goods wholly obtained ... in one countryproducts of sea-fishing and other products taken from the sea by vessels registered or recorded in that country and flying
its flag.
The legislation concerning fishing
Article 2(1) and (2) of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the
fishing industry (OJ 1976 L 20, p. 19), provides:
1.
Rules applied by each Member State in respect of fishing in the maritime waters coming under its sovereignty or within its
jurisdiction shall not lead to differences in treatment of other Member States.
Member States shall ensure in particular equal conditions of access to and use of the fishing grounds situated in the waters
referred to in the preceding subparagraph for all fishing vessels flying the flag of a Member State and registered in Community
territory.
2.
Member States shall notify other Member States and the Commission of the existing laws and administrative rules and regulations
in the field referred to in the first subparagraph of paragraph 1 together with those arising out of application of the provisions
referred to in the second subparagraph of that paragraph.
Article 3 of Regulation No 101/76 states: Member States shall notify other Member States and the Commission of any alterations they intend to make to fishery rules
laid down pursuant to Article 2.
Under Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management
of fishery resources (OJ 1983 L 24, p. 1), and Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community
system for fisheries and aquaculture (OJ 1992 L 389, p. 1), which repealed Regulation No 170/83, the Council, in order to
preserve the Community's fishery resources, set total allowable catches and divided the quotas between the Member States.
However, no total allowable catches were set for scallops.
However, in the first and second indents of Article 10(1) of Regulation No 3760/92 it is provided as follows: Member States may take measures for the conservation and management of resources in waters under their sovereignty or jurisdiction
provided:
─
they involve strictly local stocks which are only of interest to fishermen from the Member State concerned, or
─
they apply solely to the fishermen from the Member State concerned.
The legal framework established by Regulation No 170/83 was clarified by 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), Article 19(1)
and (2) of which provides:
1.
In the case of strictly local stocks of interest to the fishermen of one Member State only, that Member State may take measures
for the conservation and management of those stocks, provided that such measures are compatible with Community law and are
in conformity with the common fisheries policy.
2.
Member States shall be authorised to lay down any strictly local conditions or detailed arrangements, applying to their national
fishermen only, designed to limit the catches by technical measures in addition to those defined in the Community regulations,
provided that such measures are compatible with Community law and are in conformity with the common fisheries policy.
The rules introduced by Regulation No 171/83 have been amended on several occasions. That regulation was repealed by 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). According to the first recital in Council Regulation (EC) No 894/97 of 29 April 1997 laying down certain
technical measures for the conservation of fishery resources (OJ 1997 L 132, p. 1), the regulation codified, for reasons of
clarity and rationality, Regulation No 3094/86, which was therefore repealed by Article 19 of Regulation No 894/97.
The provisions and annexes of that last regulation, with the exception of Articles 11 and 18 to 20, were repealed by Council
Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection
of juveniles of marine organisms (OJ 1998 L 125, p. 1).
Article 46(1) of Regulation No 850/98 provides:  Member States may take measures for the conservation and management of stocks:
(a)
in the case of strictly local stocks which are of interest solely to the fishermen of the Member State concerned;  or
(b)
in the form of conditions or detailed arrangements designed to limit catches by technical measures:
(i)
supplementing those laid down in the Community legislation on fisheries;  or
(ii)
going beyond the minimum requirements laid down in the said legislation;
provided that such measures apply solely to the fishermen of the Member State concerned, are compatible with Community law,
and are in conformity with the common fisheries policy.
That article was modified as follows by Council Regulation (EC) No 1298/2000 of 8 June 2000 amending for the fifth time Regulation
(EC) No 850/98 (OJ 2000 L 148, p. 1), in order to clarify its applicability:
1.
Member States may take measures for the conservation and management of stocks:
(a)
in the case of strictly local stocks which are of interest solely to the Member State concerned; or
(b)
in the form of conditions or detailed arrangements designed to limit catches by technical measures:
(i)
supplementing those laid down in the Community legislation on fisheries; or
(ii)
going beyond the minimum requirements laid down in the said legislation;
provided that such measures apply solely to fishing vessels flying the flag of the Member State concerned and registered in
the Community or, in the case of fishing activities which are not conducted by a fishing vessel, to persons established in
the Member State concerned.
The national legislation
On 19 March 1980, the French Minister for Transport adopted Order No 794 P-3, laying down rules for the catching and landing
of scallops (
the Order), Article 1 of which provides that
[i]n coastal waters between the Belgian and Spanish frontiers it is prohibited to catch scallops between 15 May and 30 September and Article 3 of which provides that
it is prohibited to land scallops during periods closed to such fishing.
The main proceedings and the questions referred for a preliminary ruling
Annie Pansard and Others, who are fishermen, fished for scallops in the territorial waters of the Channel Island of Jersey,
from vessels registered in France, under licences issued by the Jersey authorities permitting fishing by diving. They landed
those catches on the French coast, at Saint-Cast Le Guildo between 24 May and 2 June 2000 and at Saint-Suliac on 30 July 2000.
Since those landings infringed the Order, Ms Pansard and Others were prosecuted before the court making the reference.
Before that court, the accused in the main proceedings stated that, after they had informed the Commission of the difficulties
they were experiencing, the Commission was examining the possibility of bringing an action against the French Republic for
failure to comply with obligations under the Treaty. They also asked the national court to refer a question to the Court of
Justice for a preliminary ruling concerning the compatibility of the Order with Community law. They therefore requested the
court to stay proceedings pending a decision either from the Commission or from the Court of Justice.
In the light of those considerations, the Tribunal de grande instance de Dinan decided to stay proceedings and to refer the
following questions to the Court of Justice for a preliminary ruling:
1.
Can scallops caught in the circumstances described be regarded as imported products, notwithstanding the French legislation
which applies to fish catches the law of the flag of the fishing vessel?
2.
Is the validity of the Order of 19 March 1980, which prohibits the landing of scallops during the close season, affected by
the provisions of the Treaty of Maastricht, which prohibits measures having an equivalent effect to quantitative restrictions
on imports?
The questions
It should be noted at the outset, first, that in proceedings under Article 234 EC the Court does not have jurisdiction to
rule on the compatibility of a national measure with Community law. However, it does have jurisdiction to supply the national
court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility
exists in order to decide the case before it (see, in particular, Case 6/64
Costa
[1964] ECR 585, at p. 593, and Case C-17/00
De Coster
[2001] ECR I-9445, paragraph 23).
Second, in order to provide a helpful answer to the national court which has referred a question to it for a preliminary ruling,
the Court may deem it necessary to consider provisions of Community law to which the national court has not referred in its
question (Case 35/85
Tissier
[1986] ECR 1207, paragraph 9, and Case C-107/98
Teckal
[1999] ECR I-8121, paragraph 39).
In order to provide an interpretation which will be of assistance to the national court, it must be observed that the Community
fisheries legislation is relevant for the purposes of deciding the case in the main proceedings.
The second question referred for a preliminary ruling, which must be examined first, should therefore be construed as asking,
in essence, whether Community fisheries law precludes national legislation such as that at issue in the main proceedings which
prohibits, during a given period, the landing, on part of the coastline of the Member State concerned, of scallops caught
within the territorial waters of another Member State.
Observations submitted to the Court
The Commission, which has alone proposed a reply to the second question, submits, first, that the French legislation at issue
in the main proceedings, in so far as it lays down a general prohibition on landing scallops, must be regarded as a measure
having an equivalent effect to a quantitative restriction on imports within the meaning of Article 28 EC.
It submits, next, that, in that connection, Member States cannot rely on the derogations provided by Article 30 EC, since
their residual competence in respect of technical measures for the conservation of fishing resources relates solely, according
to the Community legislation, to the conservation of strictly local stocks which are only of interest to the Member State
concerned and to technical measures which go beyond the minimum requirements of the Community legislation and concern only
the fishermen of that Member State.
The Commission further contends that, since the adoption of Regulation No 3760/92, the Member States may take measures only
in waters coming under their sovereignty or within their jurisdiction.
The Commission also maintains that the Order, because it was not notified to the Commission, has, since the adoption of Regulation
No 171/83, suffered from a substantial procedural defect rendering it inapplicable to third parties.
Finally, the Commission argues that a general and absolute prohibition on unloading in French ports during the seasonal fishing
prohibition cannot be regarded either as a measure necessary to secure compliance with the latter prohibition or as an indispensable
measure for the purposes of providing effective protection for the health and life of animals, since those objectives could
be attained just as effectively by measures having less restrictive effects on intra-Community trade.
Findings of the Court
Article 40 of the EC Treaty (now, after amendment, Article 34 EC) provides that Member States are to develop a common agricultural
policy, during the transitional period, and are to bring it into force by the end of that period at the latest, in order to
attain the objectives set out in Article 39 of the EC Treaty (now Article 33 EC).
It must be borne in mind that, by virtue of Article 102 of the Act concerning the conditions of accession of the Kingdom of
Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the adjustments to the Treaties, the power
to adopt measures for the protection of the biological resources of the sea has since 1 January 1979 been vested exclusively
in the Council, acting on a proposal from the Commission (Case 24/83
Gewiese and Mehlich
[1984] ECR 817, paragraph 5).
Furthermore, the Court has already held that once the Community has, pursuant to Article 40 of the EC Treaty, adopted legislation
establishing an organisation of the market in a given sector, the Member States are under an obligation to refrain from taking
any measure which might undermine or create exceptions to it (Case 111/76
Van den Hazel
[1977] ECR 901, paragraph 13, and Case C-44/94
Fishermen's Organisations and Others
[1995] ECR I-3115, paragraph 52).
By the adoption of Council Regulation (EEC) No 100/76 of 19 January 1976 on the common organisation of the market in fishery
products (OJ 1976 L 20, p. 1), which was repealed by Council Regulation (EEC) No 3796/81 of 29 December 1981 (OJ 1981 L 379,
p. 1), the Community introduced a common agricultural policy for the fishing industry. Furthermore, the Council laid down,
by Regulation No 101/76, a common structural policy in that sector.
Admittedly, the existence of a common organisation of the market does not prevent the competent authorities of a Member State
from adopting national measures on the terms provided for by Community legislation forming part of that organisation (
Fishermen's Organisations and Others
, cited above, paragraph 53).
In that regard, it should be pointed out, as has been observed in paragraph 7 of this judgment, that the Community has adopted
numerous measures for the management of the stocks of fishery products, in particular by establishing catch quotas for those
products, and has to a large extent regulated the fishery market.
On the other hand, it has not adopted any specific measure for the management of scallops stocks.
However, as may be seen from the first and second indents of Article 10(1) of Regulation No 3760/92, Member States may take
measures for the conservation and management of resources in waters under their sovereignty or jurisdiction, provided that
they involve strictly local stocks which are only of interest to fishermen from the Member State concerned and that they apply
solely to the fishermen from that Member State.
It is also clear from Article 46(1) of Regulation No 850/98, and from that article as amended by Regulation No 1298/2000,
that a Member State is empowered to take measures for the conservation and management of fishery stocks only if they concern
strictly local stocks which are of interest only to that Member State or which are in the form of details or conditions or
detailed arrangements designed to limit catches by technical measures, provided that such measures apply, according to the
provision as set out in Regulation No 850/98, solely to the fishermen of the Member State concerned, and are compatible with
Community law and in conformity with the common fisheries policy, and, according to the provision as amended by Regulation
No 1298/2000, solely to fishing vessels flying the flag of the Member State concerned and registered in the Community or,
in the case of fishing activities which are not conducted by a fishing vessel, to persons established in the Member State
concerned.
Thus, it follows from the above that the competence of the Member States to take measures for the conservation and management
of fishery stocks is part of a specific framework. The measures which Member States are empowered to adopt in that regard
must concern strictly local stocks or only the fishermen of the Member State concerned or fishing vessels flying the flag
of that State and may apply only to waters coming under its sovereignty or jurisdiction.
The national provision at issue in the main proceedings exceeds the competence of the Member State concerned since, first,
it concerns neither strictly local stocks nor is it in the form of conditions or detailed arrangements designed to limit catches
by technical measures, and, second, it prohibits the landing of fish caught in waters which do not come under the sovereignty
or jurisdiction of the Member State concerned.
Therefore, the reply to be given to the second question, as reformulated, must be that Community fisheries law precludes national
legislation such as that at issue in the main proceedings which prohibits, during a given period, the landing, on part of
the coastline of the Member State concerned, of scallops caught within the territorial waters of another Member State.
Having regard to the answer given to the second question, it is not necessary to answer the first question.
Costs
The costs incurred by the French and Netherlands Governments and the Commission, which have submitted observations to the
Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Sixth Chamber),
in answer to the questions referred to it by the Tribunal de grande instance de Dinan by judgment of 28 June 2001, hereby
rules:
Puissochet
Gulmann
Macken
Colneric
Cunha Rodrigues
Delivered in open court in Luxembourg on 16 January 2003.
R. Grass
J.-P. Puissochet
Registrar
President of the Sixth Chamber
–
Language of the case: French.