# C_2021401EN.01000601.xml

| 4.10.2021 | EN | Official Journal of the European Union | C 401/6 |
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4.10.2021

EN

Official Journal of the European Union

C 401/6

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Reference for a preliminary ruling from the Court of Appeal (Ireland) made on 11 August 2021 — K.M. v The Director of Public Prosecutions

(Case C-493/21)

(2021/C 401/07)

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Applicant: K.M.

Defendant: The Director of Public Prosecutions

Questions referred

| 1. | Do the terms of Article 89 and/or 90 of the Regulation (1), and the requirements of proportionality under the Charter and EU law, require the sentencing court to have a discretion to adjust, modulate or mitigate the extent of the forfeiture order of the catch and gear in particular having regard to the circumstances referred to in Articles 89 and 90 of Regulation (EC) 1224/2009? |
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1.

Do the terms of Article 89 and/or 90 of the Regulation (1), and the requirements of proportionality under the Charter and EU law, require the sentencing court to have a discretion to adjust, modulate or mitigate the extent of the forfeiture order of the catch and gear in particular having regard to the circumstances referred to in Articles 89 and 90 of Regulation (EC) 1224/2009?

| 2. | Having regard to the potential impact on the livelihood of a Master as a consequence of an automatic mandatory forfeiture of all catch and gear, can a provision of national law such as section 28(5)(b) (2) which does not allow for a national court to examine any impact on the right to earn a livelihood of a person convicted on indictment of an offence contrary to that section and the Regulation (save in the context of considering what fine might be appropriate) be considered compatible with the terms of the Regulation, the Charter and EU law, having regard to the fundamental right of the Master to exercise his or her profession? |
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2.

Having regard to the potential impact on the livelihood of a Master as a consequence of an automatic mandatory forfeiture of all catch and gear, can a provision of national law such as section 28(5)(b) (2) which does not allow for a national court to examine any impact on the right to earn a livelihood of a person convicted on indictment of an offence contrary to that section and the Regulation (save in the context of considering what fine might be appropriate) be considered compatible with the terms of the Regulation, the Charter and EU law, having regard to the fundamental right of the Master to exercise his or her profession?

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(1)  Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009, L 343, p. 1).

(2)  of the Sea Fisheries and Maritime Jurisdiction Act 2006

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