61994CJ0276_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-276/94,
REFERENCE to the Court under Article 177 of the EC Treaty by the Kriminal- og Skifteret, Frederikshavn (Denmark) for a preliminary ruling in the criminal proceedings before that court against
Finn Ohrt
on the interpretation of Articles 2 and 3 of Commission Regulation (EEC) No 1382/87 of 20 May 1987 establishing detailed rules concerning the inspection of fishing vessels (OJ 1987 L 132, p. 11),
THE COURT (Fourth Chamber),
composed of: C.N. Kakouris, President of the Chamber, P.J.G. Kapteyn and H. Ragnemalm (Rapporteur), Judges,
Advocate General: A.M. La Pergola,
Registrar: R. Grass,
after considering the written observations submitted on behalf of:
° the Danish Government, by Peter Biering, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,
° the Commission of the European Communities, by Hans Peter Hartvig, Legal Adviser, acting as Agent,
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 12 October 1995,
gives the following
Judgment
Grounds
1 By order of 6 October 1994, received at the Court Registry on 11 October 1994, the Kriminal- og Skifteret (Criminal, Bankruptcy and Probate Court), Frederikshavn, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Articles 2 and 3 of Commission Regulation (EEC) No 1382/87 of 20 May 1987 establishing detailed rules concerning the inspection of fishing vessels (OJ 1987 L 132, p. 11, hereinafter "the Regulation").
2 Those questions were raised in criminal proceedings against Finn Ohrt, who was accused of infringing the national provisions implementing Article 3(1) of the Regulation. That article provides: "The skipper of a vessel to be inspected may be required by a representative of the competent authority to stop, manoeuvre or carry out other actions in order to facilitate boarding."
3 Mr Ohrt, the skipper of the fishing vessel Actinia, was sailing in the north Kattegat when he was approached by the inflatable boarding boat from the Danish inspection vessel Nordjylland which was carrying out a fisheries inspection. Mr Ohrt did not change course and paid no attention to signals transmitted both by radio and signalling lamp ordering him to stop immediately.
4 According to the order for reference, the inflatable boat did not carry the identification symbol required by Article 2 of the Regulation which states, "Any vessel engaged in inspection shall fly, ... so as to be clearly visible, a pennant or symbol as shown in Annex I." That inspection pennant was flown only by the main vessel, the Nordjylland, which was not in the vicinity of the Actinia.
5 Mr Ohrt told the national court that he was unaware that the order to stop had been given by an inspection vessel.
6 In those circumstances, the Kriminal- og Skifteret, Frederikshavn, referred the following questions to the Court of Justice for a preliminary ruling:
"1. Is Article 2 of Commission Regulation (EEC) No 1382/87 of 20 May 1987 establishing detailed rules concerning the inspection of fishing vessels to be interpreted as meaning that the inspection pennant or inspection symbol described in Annex I to that regulation must be displayed by or be painted on the boarding boat (inflatable boat) or is it sufficient that the parent vessel Nordjylland displayed that pennant or had that symbol painted on it?
If the answer is that the boarding boat did not have to bear the pennant or have the symbol painted on it, no further preliminary ruling is sought. If that is not the case:
2. Has any failure to comply with the requirements in Article 2 any legal significance regarding the question whether the skipper of a vessel (see Article 3) is under an obligation to comply with orders from the authority carrying out the inspection and if so, what is its significance?"
7 With regard to the first question, it should be noted that neither Article 2 nor the other provisions of the Regulation are intended to define the type of vessel which a Member State may designate or use as an inspection vessel.
8 On the other hand, Article 2 of the Regulation is intended to determine, on a uniform basis, the conditions for identification of inspection vessels. Any vessel purporting to represent the competent authority of a Member State must carry a symbol or a pennant. Only if a vessel flies a distinctive symbol of that kind, so that it is visible, can the skipper of a fishing vessel identify it as an inspection vessel and comply with orders given by it, without any other form of warning, in accordance with Article 3(1) of the Regulation.
9 The position is the same where, as in this case, the boat undertaking the inspection belonged to the main inspection vessel but was, for the time being, operating independently.
10 Accordingly, the answer to be given to the first question is that Article 2 of the Regulation must be interpreted as meaning that every inspection vessel, regardless of type or dimensions, must display the identification symbol or pennant described in Annex I to the Regulation.
11 In its second question, the national court asks essentially whether the skipper of a fishing vessel may claim, in order to justify his failure to comply with orders given to him under Article 3 of the Regulation, that the authority carrying out the inspection did not make itself recognizable as such by means of the symbol or pennant referred to in Article 2 of the Regulation.
12 The symbol and pennant in question are identification signals. Their absence does not deprive a boat designated as an inspection vessel by a Member State of its status as such.
13 Displaying the symbol or pennant in question, in a visible manner, must therefore be regarded as a sufficient means of proving the status of an authority entrusted with inspection, although that is not the sole means of proof. If the abovementioned symbols are not displayed by an inspection vessel, it may be presumed that the skipper of a fishing vessel to be inspected is not aware that the order to stop is being given to him by the competent authority of a Member State. However, that presumption will be negated by proof that the skipper of the vessel to be inspected was aware of the status of the inspecting authority.
14 The answer to be given to the second question is therefore that the obligation to comply with the orders of a representative of the competent authority of a Member State, under Article 3 of the Regulation, presupposes that the skipper of the vessel to be inspected is aware of the status of that representative. In the absence of the symbol or pennant required by Article 2 of the Regulation, the skipper is presumed to be unaware of that status, unless the authorities taking action concerning the infringement prove otherwise.
Decision on costs
Costs
15 The costs incurred by the Danish Government and the Commission of the European Communities, 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.
Operative part
On those grounds,
THE COURT (Fourth Chamber)
in answer to the question referred to it by the Kriminal- og Skifteret, Frederikshavn, by order of 6 October 1994, hereby rules:
1. Article 2 of Commission Regulation (EEC) No 1382/87 of 20 May 1987 establishing detailed rules concerning the inspection of fishing vessels must be interpreted as meaning that every inspection vessel, regardless of type or dimensions, must display the identification symbol or pennant described in Annex I to that regulation.
2. The obligation to comply with the orders of a representative of the competent authority of a Member State, under Article 3 of the Regulation, presupposes that the skipper of the vessel to be inspected is aware of the status of that representative. In the absence of the symbol or pennant required by Article 2 of the Regulation, the skipper is presumed to be unaware of that status, unless the authorities taking action concerning the infringement prove otherwise.