CELEX: 61988CJ0348
Fisheries
Method to be applied in order to determine the mesh size of nets

Grounds
1 By an order of 25 October 1988, which was received at the Court on 29 November 1988, the Amtsgericht ( Local Court ) Bremerhaven, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Article 2(1 ) of Council Regulation 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 ) and on Article 6 of Commission Regulation 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 ).
2 The questions arose in criminal proceedings instituted against Mr Hakvoort for an infringement of the Community rules on the mesh size of nets .
3 In June 1987, German officials responsible for the inspection of fisheries in the North Sea inspected Mr Hakvoort' s boat . The inspection related to the mesh size of the nets .
4 In accordance with Article 2(1 ) and Annex 1 to Regulation No 3094/86, the minimum mesh size of nets was fixed at 80 mm for fishing in the North Sea . Under Article 3 of that regulation, the Commission was to draw up the technical rules for determining mesh size .
5 Article 6 of Regulation No 2108/84 states that the inspection procedure shall be as follows :
"1 . The inspector shall measure one series of 20 meshes, selected in accordance with Article 3, inserting the gauge manually without using a weight or dynamometer .
The mesh size of the net shall then be determined in accordance with Article 5 .
If the calculation of the mesh size shows that the mesh size does not appear to comply with the rules in force, then two additional series of 20 meshes selected in accordance with Article 3 shall be measured .
The mesh size shall then be recalculated in accordance with Article 5, taking into account the 60 meshes already measured . Without prejudice to paragraph 2, this shall be the mesh size of the net .
2 . If the captain of the vessel contests the mesh size determined in accordance with paragraph 1, such measurement will not be considered for the determination of the mesh size and the net shall be measured . A weight or dynamometer attached to the gauge shall be used for remeasurement .
The choice of weight or dynamometer shall be at the discretion of the inspector .
The weight shall be fixed to the hole in the narrowest extremity of the gauge using a hook . The dynamometer may either be fixed to the hole in the narrowest extremity of the gauge or be applied at the largest extremity of the gauge .
The accuracy of the weight or dynamometer shall be certified by the appropriate national authority .
For nets of a mesh size of 35 mm or less as determined in accordance with paragraph 1, a force of 19.61 newtons ( equivalent to a mass of 2 kilograms ) shall be applied and for other nets a force of 49.03 newtons ( equivalent to a mass of 5 kilograms ).
For the purposes of determining the mesh size in accordance with Article 5 when using a weight or dynamometer, one series of 20 meshes only shall be measured ."
6 According to the findings of the national court, in inspecting Mr Hakvoort' s net, the inspectors first measured manually an initial series of 20 meshes . That first inspection disclosed that the mesh size was less than the 80 mm required by Regulation No 3094/86 on conservation measures . The inspectors then carried out a second measurement of a fresh series of 20 meshes, this time using a gauge to which a 5 kg weight was attached . That measurement also revealed that the mesh size was less than the minimum prescribed . The inspectors then ordered Mr Hakvoort to put into the port of Cuxhaven where they carried out a third measurement of 20 meshes, again using a gauge with a 5 kg weight attached to it . That third measurement likewise revealed a mesh size less than the minimum prescribed .
7 Mr Hakvoort was prosecuted before the Staatliche Fischereiamt ( State Fisheries Office ) Bremerhaven, which fined him DM 22 000 for using nets whose mesh size was less than the minimum mesh size laid down in Regulation No 3094/86 . The Staatliche Fischereiamt also confiscated the proceeds of the forced sale of the catch on board the vessel and impounded the offending net .
8 Mr Hakvoort challenged that decision before the Amtsgericht Bremerhaven maintaining that the procedure whereby the offence had been established was irregular . He alleged that the inspectors had not observed the procedure set out in Article 6 of Regulation No 2108/84 on mesh size since they carried out measurements using a weight without first conducting a manual measurement of 60 meshes, as stipulated in that provision .
9 The Staatsanwaltschaft ( Public Prosecutor' s Office ) Bremen argued that the method of measurement used by the inspectors was in compliance with Regulation No 2108/84 . In its view, the inspectors were entitled to decide at any time to carry out a measurement using a weight . Measurement with a weight was more accurate than manual measurement and more favourable to the captain since the use of weights further enlarged the meshes .
10 Considering that the resolution of the dispute depended on the interpretation of the Community rules on the mesh size of nets, the Amtsgericht Bremerhaven stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling :
"( 1 ) Is Article 2(1 ) of Council Regulation ( EEC ) No 3094/86 of 7 October 1986 ( Official Journal 1986, L 288, p . 1 ) to be interpreted as meaning that a mesh size for the purposes of that provision is only one which has been determined in strict compliance with the procedure for determining mesh sizes laid down in Commission Regulation ( EEC ) No 2108/84 of 23 July 1984 ( Official Journal 1984, L 194, p . 22 )?
( 2 ) Is Article 6 of Commission Regulation ( EEC ) No 2108/84 of 23 July 1984 to be interpreted as meaning that the inspector must in every case begin by determining the mesh size of a net by manual measurement of 60 meshes and is only empowered to determine the mesh size by measurement using a weight in accordance with Article 6(2 ) of Regulation No 2108/84 if the captain of the vessel raises an objection to the first measurement,
or
is the inspector free to undertake a measurement using a weight in accordance with Article 6(2 ) of Regulation No 2108/84 without first carrying out a manual measurement or measuring a complete series of 60 meshes manually in accordance with Article 6(1 ) of Regulation No 2108/84 and in the absence of any objection on the part of the captain, and may he base his decision as to whether there has been an infringement of Article 2 of Regulation No 3094/86 on that measurement alone?
( 3 ) Are the provisions of Regulation No 2108/84 intended also to protect the captain of the vessel undergoing the inspection?"
11 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the relevant provisions of Community law, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
The first question
12 By its first question the national court essentially seeks to ascertain whether the Community alone is competent to adopt technical rules for determining mesh size and, if so, whether the technical rules for determining mesh size referred to in Council Regulation No 3094/86 on conservation measures are those contained in Commission Regulation No 2108/84 on the determination of mesh sizes .
13 On that point, it should be pointed out first of all that in its judgment of 14 July 1976 in Joined Cases 3, 4 and 6/76 Kramer (( 1976 )) ECR 1279, paragraph 30, the Court held that the Community had at its disposal, on the internal level, the power to take any measures for the conservation of the biological resources of the sea . Such a conservation policy entails the adoption of specific rules on the mesh size of nets, such rules being intended to ensure the protection of those resources . It follows that the Community alone is competent to adopt rules prohibiting the use of nets having a mesh size less than a given minimum, and rules on the determination of the mesh size of nets .
14 It should also be pointed out that Commission Regulation No 2108/84 on the determination of mesh sizes was adopted in accordance with Article 6 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 ). According to that latter provision, the Commission was to adopt the rules on the determination of the mesh size of nets after obtaining the opinion of the Management Committee .
15 Council Regulation No 171/83 was repealed and replaced by Council Regulation No 3094/86 of 7 October 1986 on conservation measures, Article 3 of which provides in essence that the Commission is to adopt the technical rules for determining mesh sizes in accordance with the management committee procedure . However, Article 16(2 ) of that regulation provides that references to Regulation No 171/83 must be construed as references to Regulation No 3094/86 on the basis of a correlation table annexed to the latter regulation . According to that table, Article 6 of Council Regulation No 171/83 is equivalent to Article 3 of Regulation No 3094/86 . It follows that the rules for determining mesh sizes adopted by the Commission on the basis of Article 6 of Council Regulation No 171/83 must be deemed to have been adopted on the basis of Article 3 of Regulation No 3094/86 .
16 For those reasons, the reply to be given to the first question must be that the Community alone has power to adopt technical rules for determining mesh sizes and that the technical rules for determining mesh sizes referred to in Council Regulation No 3094/86 are those contained in Commission Regulation No 2108/84 on the determination of mesh sizes .
The third question
17 By its third question the national court essentially asks whether, in addition to seeking to protect biological resources, Regulation No 2108/84 on the determination of mesh sizes is also intended to protect the captain of the vessel inspected .
18 In that connection, it should be emphasized that at the material time the Member States were required under Article 1 of Council Regulation ( EEC ) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States ( Official Journal 1982, L 220, p . 1 ) to ensure the observance of conservation measures in respect of fishery resources and, when those rules were found to be infringed, to bring criminal or administrative proceedings against the captain of the vessel concerned .
19 Since a finding that a mesh size less than the minimum prescribed is one of the matters constituting an offence, it should be observed that, in laying down the procedure which the inspectors are required to follow, Regulation No 2108/84 determines the limits of the offence itself .
20 The reply to the third question must therefore be that, in addition to seeking to protect biological resources, Regulation No 2108/84 on the determination of mesh sizes is also intended to protect the captain of the vessel inspected .
The second question
21 By its second question the national court essentially seeks to ascertain whether inspectors are required to follow the inspection procedure laid down in Article 6 of Regulation No 2108/84 .
22 It should first be observed that it is clear from the very wording of that provision that measurement by means of a weight may be carried out only after manual measurement has disclosed an insufficient mesh size and provided that the captain contests the results of that measurement .
23 Moreover, as the Commission has explained, the two methods of measurement do not necessarily lead to the same result . In particular, manual measurement, even if it is less accurate than measurement with a weight, has the advantage of covering a more representative sample of the net, namely 60 meshes, whereas the inspectors are required to examine only 20 meshes when carrying out a measurement using a weight . In the case of a given net, manual measurement may therefore reveal a mesh size larger than that which would have been obtained by measuring the net with a weight . Since the latter method is not necessarily more favourable to the captain of the vessel than the manual method and, as was stated above, Regulation No 2108/84 is also intended to protect the captain, it follows that complete performance of the manual inspection is the prerequisite for measurement with a weight .
24 The reply to the second question must therefore be that inspectors are required to follow the inspection procedure laid down in Article 6 of Regulation No 2108/84 .
Decision on costs
Costs
25 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court .
Operative part
On those grounds,
THE COURT ( First Chamber ),
in answer to the questions referred to it by the Amtsgericht Bremerhaven, by order of 25 October 1988, hereby rules :
( 1 ) The Community alone has power to adopt technical rules for determining mesh sizes . The technical rules for determining mesh size referred to in Council Regulation ( EEC ) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources are those contained in Commission Regulation No 2108/84 of 23 July 1984 laying down detailed rules for determining the mesh size of fishing nets .
( 2 ) In addition to seeking to protect biological resources, Commission Regulation ( EEC ) No 2108/84 is also intended to protect the captain of the vessel inspected .
( 3 ) Inspectors are required to follow the inspection procedure laid down in Article 6 of Commission Regulation ( EEC ) No 2108/84 .