Opinion of Mr Advocate General Van Gerven delivered on 20 February 1990. - Criminal proceedings against Jelle Hakvoort. - Reference for a preliminary ruling: Amtsgericht Bremerhaven - Germany. - Fisheries - Method to be applied in order to determine the mesh size of nets. - Case C-348/88.



European Court reports 1990 Page I-01647



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The questions submitted for a preliminary ruling by the Amtsgericht Bremerhaven ( Local Court, Bremerhaven ) require the Court to clarify a number of Community rules laying down the inspection procedure to be followed when the mesh size of fishing nets are checked .

Background

2 . The facts giving rise to the main proceedings may be summarized as follows . On 4 June 1987 the cutter of Dutch skipper Jelle Hakvoort was inspected in the North 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 found that the meshes of the net were smaller than the minimum mesh size for that area of the North Sea laid down in Community law, namely 80 mm . As a result of the prosecution brought on the basis of this inspection, Captain Hakvoort was sentenced on 26 June 1987 by the Staatliche Fischereiamt ( State Fisheries Office ) in Bremerhaven to a fine of DM 22 000, the proceeds ( amounting to DM 11 600 ) of the forced sale of the fish confiscated on 4 June 1987 were declared forfeit and Captain Hakvoort' s port net was impounded .

The question arising in the main 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 .

3 . Before looking more closely at the dispute between the parties I shall recall the relevant rules . Council Regulation ( EEC ) 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 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 ). Article 3 provides that the technical rules for the determination of mesh size are to be drawn up in accordance with the Management Committee procedure .

The relevant rules for measurement are contained in Commission Regulation ( EEC ) No 2108/84 laying down detailed rules for determining the mesh size of fishing nets . ( 2 ) This regulation contains rules relating to the gauges to be used for determining mesh sizes ( Article 1 ), the use of such gauges ( Article 2 ), the selection of meshes to be measured ( Article 3 ), the determination of the mesh size of the net ( Articles 4 and 5 ) and the measurement procedure to be followed ( Article 6 ). Central to the dispute between the parties is the application of the procedure laid down in Article 6 . I shall quote the relevant passages of that article :

"1 . The inspector shall measure one series of 20 meshes ... inserting the gauge manually without using a weight or dynamometer .

...

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 ... shall be measured .

The mesh size shall then be recalculated ... 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 .

...

For the purposes of determining the mesh size ... when using a weight or dynamometer, one series of 20 meshes only shall be measured ."

4 . In actual fact ( the parties to the main proceedings agree on this point ) the procedure adopted in inspecting Captain Hakvoort' s net was as follows . The inspectors manually measured one series of 20 meshes; the result of that measurement showed that the meshes of the net were too small . Manual measurement was then discontinued and the inspectors attached a 5 kg weight to the measuring gauge by means of which a further 20 meshes were measured . Captain Hakvoort did not challenge the result of the manual measurement, ( 3 ) which is required by Article 6(2 ) as a pre-condition for not taking into consideration the result of the first measurement ( of three times 20 meshes ) and for going over to measurement using a weight or dynamometer . Even after the measurement with a weight the mesh size of the nets appeared to be too small . Thereupon Captain Hakvoort was ordered to put into the port of Cuxhaven, where some hours later 20 meshes of the port net were again measured using a weight . This measurement showed an average mesh size which was still too small, namely 76 mm .

5 . Captain Hakvoort challenged before the national court the fine imposed on him by the Staatliche Fischereiamt . He is of the opinion that the offence alleged against him cannot be based on the measurements made by the inspectors, on the ground that they did not adhere strictly to the measuring procedure laid down in Article 6 of Regulation ( EEC ) No 2108/84 . The national court is inclined to the view taken by Captain Hakvoort, but, before giving judgment, wishes to obtain from the Court of Justice a preliminary ruling on three questions . Those questions may be summarized as follows :

"( 1 ) Can the mesh size of a net be determined only in strict compliance with the provisions of Regulation ( EEC ) No 2108/84?

( 2 ) Is the sequence of measurement methods laid down in Article 6 ( first manual measurement of three series of 20 meshes, then measurement with a weight or a dynamometer but only if the captain contests the first measurement ) binding on the inspectors?

( 3 ) Are the provisions of Regulation ( EEC ) No 2108/84 intended also to provide legal protection for the captain of the vessel inspected?"

With these questions ( for the full text thereof I refer to the Report for the Hearing ) the national court seeks to ascertain the implications under Community law for the captain of the vessel inspected of a failure by the inspectors to adhere to the measuring procedure laid down in Regulation No 2108/84 . Captain Hakvoort' s observations underline the importance of the determination of this question . There is said to be no unanimity amongst the inspection services of a number of Laender of the Federal Republic as to the mandatory nature of the relevant provisions . Moreover, the German courts of first instance apparently make no distinction between the results of measurements obtained manually and those obtained using a weight, since they regard the results of both methods of measurement as factual elements whose evidential value may be freely assessed by the courts .

Before examining the preliminary questions themselves, I would first like to turn to an objection raised in the observations of the Staatsanwaltschaft Bremen ( hereinafter referred to as "the Bremen Public Prosecutor' s Office ").

The question of competence

6 . The Bremen Public Prosecutor' s Office acknowledges that the Community is competent in fishery matters to define the substantive elements of an offence . It denies, 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 minimum mesh sizes ) can also be determined by rules of Community law .

In assessing the legislative competence of the Community, account must be taken of the extent of the Community' s responsibility for elaborating policy in a given area . As is well known, the Community has enjoyed exclusive competence since 1977 as regards the conservation of fishery resources . Moreover, the Court has held in that connection that, even in the event of a failure to act by the Council, the Member States have no unilateral legislative competence in this field . ( 4 )

I infer therefrom that there are no objections in principle against the adoption at the Community level of a uniform procedure for establishing infringements as regards the mesh size of fishing nets, as the Council moreover recognized in Article 3 of Regulation No 3094/86, in which the Commission is made responsible for drawing up the technical rules for the determination of mesh size . ( 5 ) On the one hand, the Community has, as already pointed out, full competence in the matter of the conservation of fishery resources and thus in the matter of the harmonization of the relevant rules . On the other hand, the laying down of prohibitory rules, and thus also the substantive elements of infringements of such rules, forms an essential part of such conservation policy . In the interests of the uniform application of Community policy the manner of establishing an infringement in a given case should come within this competence, particularly when the methods of establishing an infringement can lead to different results .

7 . With specific reference to Regulation No 2108/84, the matter may be explained as follows . Establishing an infringement of the rules relating to mesh size is a complex matter in which the type of measuring gauge used, the actual use of the measuring gauge and the selection of the meshes to be measured are of crucial importance ( see also paragraph 8 below ). This shows that in the present case there is in fact a close connection between the rules which define the substantive elements of the offence and those which govern the establishment thereof . It seems to me therefore that the Community is indeed competent to adopt rules on measurement of the type contained in Regulation No 2108/84 to be adhered to by national inspectors . Captain Hakvoort rightly points out in his observations that the provisions of Regulation No 2108/84 are intended to prevent the application of different national provisions on measurement from leading to unfairness in cases where persons are penalized . That consideration is particularly relevant in the case of an activity such as sea fishing, which by its nature involves the crossing of frontiers .

I therefore come to the conclusion that Commission Regulation No 2108/84 in no way exceeds the Community' s competence .

Answering the preliminary questions

8 . The reply to the first and the third questions does not present any particular difficulty . A simple reading of the applicable rules clearly shows that the rules on inspection contained in Regulation No 2108/84 give effect to Article 3 of Regulation No 3094/86, which requires technical rules to be laid down for the measurement of the mesh size of nets . The wording and the objective of Regulation No 2108/84 ( the preamble to the regulation expressly relates rules for determining mesh size to the conservation of fishery resources ) admit of no doubt that the mesh size of a net can only be determined in accordance with the rules laid down in that regulation . In its observations, the Commission rightly points out the many complex problems which may arise in regard to the measurement of a net : only meshes which are a certain distance from the edge of the net or from a lacing may be measured ( Article 3(2 ) ); meshes which are broken or to which attachments have been fixed may not be measured ( ibid .); nets may be measured only when wet and unfrozen ( Article 3(4 ) ). The rules contained in Article 6 of that regulation must also be read in that light : the 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 captain of the vessel inspected it was therefore decided that, where the average of the first series of 20 meshes is less than the prescribed minimum mesh size, that measurement should be supplemented by two new series of 20 meshes . On the basis of all the foregoing it seems to me that the mesh size of a net must be determined in ( strict ) accordance with the abovementioned rules .

Since the establishment of an insufficient mesh size generally leads to the institution of criminal proceedings against the captain, ( 6 ) it is self-evident that the rules contained in Regulation No 2108/84 for 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 manual measurement ), it appears from the wording of Regulation No 2108/84 ( see paragraph 3, above ) that measurement using a weight or a dynamometer may only take place if the captain contests the result of the manual measurement . That provision, it seems to me, is clearly inspired by a concern to check the reliability of an infringement established by means of a manual measurement with a view to discharging the captain where he raises an objection .

9 . There remains the second question : may an inspector depart from the sequence laid down in Article 6 of Regulation No 2108/84 by omitting the manual measurement and carrying out only a measurement using a weight or a dynamometer, or by desisting from manual measurement after the first series of 20 meshes? In order to reply to this question I 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 regulation . I prefer, however, to explain this position on the basis of the underlying meaning of Article 6 of Regulation No 2108/84, as outlined in the Commission' s observations and clarified at the hearing .

Manual measurement always involves an element of uncertainty, because the measuring gauge is inserted into the mesh by hand until it is stopped at the tapering edges by the resistance of the mesh ( Article 2(3 ) in conjunction with Article 4 of Regulation No 2108/84 ). Manual insertion must be carried out for a series of 20 generally different meshes . The uncertainty as to the precise manual force to be used can be eliminated if the gauge is inserted into the net using a weight or a dynamometer . In its observations, the Commission pointed out that that method was not initially chosen because it is much more complicated and therefore more time-consuming . That is why it was decided to use that method only if the captain of the vessel contests the results of the manual measurement ( of three series of 20 meshes ). Furthermore, measurement with a weight or dynamometer 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 weight or a dynamometer is always to the advantage of the captain, that is to say it affords him greater legal certainty, and for that reason he may not challenge the suspension or omission of manual measurement, is incorrect . As I understand it, that is only the case where measurement with a weight or dynamometer is carried out after the vessel has put into harbour, which happened in this case ( see paragraph 4 above ) but this is not stipulated in Regulation No 2108/84 because, I assume, it would be yet more time-consuming .

It follows from the foregoing account that measurement with a weight or dynamometer ( carried out at sea in an appropriate case and therefore not necessarily more accurate ) is to be regarded as a verification of the results obtained by manual measurement . In fact, only if the captain contests the result of the manual measurement is use made of a weight or dynamometer, the result thus obtained superseding the first result . That signifies in my view that, if the manual measurement of an initial series of 20 meshes reveals a possible infringement, the measurement must be continued manually . Otherwise, it could happen that the captain, owing to inadequate information and thus with insufficient knowledge of the situation, does not insist on a measurement which, if it had been carried on, would have produced a result more favourable to him .

10 . I therefore conclude that the inspector is obliged to carry out an inspection of the mesh size in strict compliance with the procedure laid down in Article 6 of Regulation No 2108/84 . In other words, he must first measure a series of 20 meshes manually . Should this initial measurement indicate that the mesh size is too small, he should, at a second stage, measure two further series of meshes manually . The result of the measurement carried out in that way is to be disregarded only if the captain challenges it and then, in a third stage, the mesh size of the net is determined on the basis of a series of 20 meshes with a weight or dynamometer .

The fact that, as happened in this case, the result of a measurement carried out with a weight or a dynamometer is subsequently confirmed by a fresh measurement carried out in port, in no way alters the position . The measurement in port forms no part of the stipulated procedure, so that its results cannot form conclusive evidence against the captain, for such evidence can only be established if the prescribed procedure is strictly followed .

Conclusion

11 . I propose that the Court should give the following reply to the questions submitted for a preliminary ruling by the Amtsgericht Bremerhaven :

"( 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 Regulation ( EEC ) No 2108/84 .

( 2 ) The provisions of Regulation ( EEC ) No 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 ."

(*) Original language : Dutch .

( 1 ) 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 ).

( 2 ) Commission Regulation ( EEC ) No 2108/84 of 23 July 1984 ( OJ 1984, L 194, p . 22 ). That regulation is formally based on 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 ). Regulation No 171/83 was, however, repealed by Article 16 of Regulation ( EEC ) No 3094/86 but that article goes on to provide that all references to Regulation No 171/83 are to be construed as references to Regulation No 3094/86 . The terms of Article 6 of Regulation No 171/83 are now contained in Article 3 of Regulation No 3094/86 .

( 3 ) In the order for reference it is stated : "Der Kapitaen ... hatte einer Handmessung nicht widersprochen" ( 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 result of the manual measurement .

( 4 ) See the judgments of 14 July 1976 in Joined Cases 3, 4 and 6/76 Cornelis Kramer and Others (( 1976 )) ECR 1279, paragraph 41, and of 5 May 1981 in Case 804/79 Commission v United Kingdom (( 1981 )) ECR 1045, paragraphs 17 to 20 .

( 5 ) Moreover, Mr Hakvoort' s legal representative stated at the hearing that earlier German rules on the measuring procedure to be followed in establishing the mesh size of fishing nets were repealed around 1978 ( the transitional period for the entry into force of the exclusive competence of the Community as regards the conservation of the marine biological resources, referred to in Article 102 of the Act of Accession of 1972, expired on 1 January 1979 ).

( 6 ) The Member States are in fact required under Article 1 of Council Regulation ( EEC ) No 2241/87 of 23 July 1987 ( OJ 1987, L 207, p . 1 ) to keep adequate checks on the conservation of fishery resources and to penalize infringements, either by administrative or criminal sanctions . Case C-64/88 Commission v France, still pending before the Court, concerns the fulfilment of this obligation .