Judgment of the Court (Second Chamber) of 11 May 1983. - Lieutenant Commander A.G. Rogers v H.B.L. Darthenay. - Reference for a preliminary ruling: Plymouth Magistrates' Court - United Kingdom. - Fisheries - National conservation measures. - Case 87/82.



European Court reports 1983 Page 01579



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - TECHNICAL CONSERVATION MEASURES - USE OF DEVICES OBSTRUCTING OR DIMINISHING THE MESH OF FISHING NETS - PROHIBITION - IMMEDIATE EFFECT - ABSENCE OF DETAILED IMPLEMENTING RULES - IRRELEVANT

( COUNCIL REGULATION NO 2527/80 , ART . 7 )

2 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - PERIOD PROVIDED FOR IN ARTICLE 102 OF THE ACT OF ACCESSION - EXPIRY - EXCLUSIVE POWERS OF THE COMMUNITY

( ACT OF ACCESSION , ART . 102 )

3 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - TECHNICAL CONSERVATION MEASURES - USE OF DEVICES OBSTRUCTING OR DIMINISHING THE MESH OF FISHING NETS - PROHIBITION - PERMISSION TO USE DEVICES FOR THE PROTECTION OF NETS - IMMEDIATE EFFECT - ABSENCE OF DETAILED IMPLEMENTING RULES - JURISDICTION OF COURTS - CRITERIA APPLICABLE

( COUNCIL REGULATION NO 2527/80 , ART . 7 )

Summary

1 . THE FIRST SENTENCE OF ARTICLE 7 OF REGULATION NO 2527/80 , ACCORDING TO WHICH NO DEVICE IS TO BE USED BY MEANS OF WHICH THE MESH IN ANY PART OF A FISHING NET IS OBSTRUCTED OR OTHERWISE EFFECTIVELY DIMINISHED , IS AN INDEPENDENT AND PERFECTLY CLEAR PROVISION , CREATING A PROHIBITION WITH IMMEDIATE EFFECT WHICH CANNOT DEPEND UPON THE ADOPTION OF THE DETAILED IMPLEMENTING RULES PROVIDED FOR IN THE SECOND SENTENCE OF THE SAID PROVISION .

2 . SINCE THE EXPIRY ON 1 JANUARY 1979 OF THE TRANSITIONAL PERIOD PROVIDED FOR IN ARTICLE 102 OF THE ACT OF ACCESSION THE POWER TO ADOPT , AS PART OF THE COMMON FISHERIES POLICY , MEASURES TO CONSERVE THE RESOURCES OF THE SEA VESTS FULLY AND FINALLY IN THE COMMUNITY .

3 . IT IS CLEAR FROM THE PURPOSE AND TERMS OF ARTICLE 7 OF REGULATION NO 2527/80 THAT THE ENTIRE PROVISION MUST HAVE IMMEDIATE EFFECT , INCLUDING THE PERMISSION TO USE DEVICES FOR THE PROTECTION OF NETS THE USE OF WHICH APPEARS TO BE COMPATIBLE WITH THE PROHIBITION OF THE USE OF ANY DEVICE BY MEANS OF WHICH THE MESH IN ANY PART OF A FISHING NET IS OBSTRUCTED OR OTHERWISE EFFECTIVELY DIMINISHED .

IN THE ABSENCE OF DETAILED IMPLEMENTING RULES ADOPTED BY THE COMMUNITY TO GIVE FORMAL EXPRESSION TO THAT PERMISSION , IT IS FOR THE COMPETENT COURTS TO FILL THE RESULTING LACUNA IN A MANNER WHICH IS CONSISTENT WITH THE AIM OF PROTECTING FISHING STOCKS AND WHICH ALSO TAKES INTO ACCOUNT THE FACT THAT PROTECTION OF FISHING NETS SHOULD BE PERMITTED .

Parties

IN CASE 87/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY PLYMOUTH MAGISTRATES ' COURT FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

LIEUTENANT COMMANDER A . G . ROGERS , ROYAL NAVY ,

AND

H . B . L . DARTHENAY

Subject of the case

ON THE INTERPRETATION OF COUNCIL REGULATION ( EEC ) NO 2527/80 OF 30 SEPTEMBER 1980 LAYING DOWN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES ( OFFICIAL JOURNAL 1980 , L 258 , P . 1 ),

Grounds

1 BY AN ORDER DATED 7 AUGUST 1981 , WHICH WAS RECEIVED AT THE REGISTRY ON 11 MARCH 1982 , PLYMOUTH MAGISTRATES ' COURT REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS ON THE INTERPRETATION OF REGULATION NO 2527/80 OF 30 SEPTEMBER 1980 LAYING DOWN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES ( OFFICIAL JOURNAL 1980 , L 258 , P . 1 ).

2 THOSE QUESTIONS AROSE IN THE COURSE OF A PROSECUTION BROUGHT BY LIEUTENANT COMMANDER ROGERS , ROYAL NAVY , FOR THE MINISTRY OF AGRICULTURE , AGAINST THE MASTER OF A FRENCH FISHING BOAT CALLED THE CHRISTINE MARIE , MR DARTHENAY , FOR AN INFRINGEMENT OF ARTICLE 7 OF REGULATION NO 2527/80 AND ARTICLE 8 OF THE FISHING NETS ( NO 2 ) ORDER 1980 OF 19 DECEMBER 1980 ( STATUTORY INSTRUMENTS 1980 , NO 1994 ), LAYING DOWN MEASURES RELATING TO BOATS AND METHODS OF FISHING AND PROVIDING FOR THE IMPLEMENTATION OF CERTAIN PROVISIONS OF THE AFOREMENTIONED REGULATION , AS AMENDED BY THE FISHING NETS ( NO 2 ) ( VARIATION ) ( NO 5 ) ORDER 1981 OF 29 JUNE 1981 ( STATUTORY INSTRUMENTS 1981 , NO 906 ).

3 ARTICLE 7 OF REGULATION NO 2527/80 , THE VALIDITY OF WHICH WAS EXTENDED BY SUBSEQUENT REGULATIONS UNTIL 31 OCTOBER 1981 , PROVIDES :

' ' NO DEVICE SHALL BE USED BY MEANS OF WHICH THE MESH IN ANY PART OF A FISHING NET IS OBSTRUCTED OR OTHERWISE EFFECTIVELY DIMINISHED . THIS PROVISION DOES NOT EXCLUDE THE USE OF THE DEVICES REFERRED TO IN THE DETAILED IMPLEMENTING RULES TO BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 20 . ' '

4 ACCORDING TO ARTICLE 20 , DETAILED RULES FOR THE IMPLEMENTATION OF THE REGULATION ARE TO BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLES 31 ( 2 ) AND 32 OF COUNCIL REGULATION NO 100/76 OF 29 JANUARY 1976 ON THE COMMON ORGANIZATION OF THE MARKET IN FISHERY PRODUCTS ( OFFICIAL JOURNAL 1976 , L 20 , P . 1 ). ARTICLE 31 SETS UP A MANAGEMENT COMMITTEE FOR FISHERY PRODUCTS WHICH DELIVERS AN OPINION IN ACCORDANCE WITH ARTICLE 32 ( 1 ) AND ( 2 ). ARTICLE 32 ( 3 ) AUTHORIZES THE COMMISSION , OR IN SOME CASES THE COUNCIL , TO ADOPT THE APPROPRIATE MEASURES . IN THE EVENT , NO DETAILED IMPLEMENTING RULES WERE ADOPTED BEFORE THE END OF THE PERIOD OF VALIDITY OF REGULATION NO 2527/80 .

5 DURING THAT PERIOD THE BRITISH GOVERNMENT ISSUED STATUTORY INSTRUMENT NO 1994 OF 1980 , ARTICLE 8 OF WHICH PROVIDES :

' ' ( 1 ) A TRAWL , DANISH SEINE OR SIMILAR NET CARRIED

( A ) IN ANY BRITISH FISHING BOAT REGISTERED IN THE UNITED KINGDOM , OR

( B)IN ANY WATERS ADJACENT TO THE UNITED KINGDOM AND WITHIN BRITISH FISHERY LIMITS BY A FISHING BOAT NOT REGISTERED IN THE UNITED KINGDOM OR NOT REGISTERED IN ANY COUNTRY SHALL NOT HAVE ATTACHED TO IT A DEVICE HAVING THE EFFECT OF OBSTRUCTING OR DIMINISHING THE MESH IN CONTRAVENTION OF ARTICLE 7 OF THE COUNCIL REGULATION .

( 2)NOTWITHSTANDING PARAGRAPH ( 1 ) OF THIS ARTICLE , ANY CANVAS , NETTING OR OTHER MATERIAL MAY BE ATTACHED TO THE UNDERSIDE OF THE COD-END OF A NET FOR THE PURPOSE OF PREVENTING OR REDUCING WEAR AND TEAR , IF IT IS FASTENED TO THE COD-END ONLY ALONG THE FORWARD AND LATERAL EDGES OF SUCH CANVAS , NETTING OR OTHER MATERIAL . ' '

6 ON 5 AUGUST 1981 , THE FISHING BOAT CHRISTINE MARIE WAS FISHING WITHIN BRITISH FISHERY LIMITS AND USING , AS WAS STATED BY THE NATIONAL COURT , ' ' A TRAWL , DANISH SEINE OR SIMILAR NET HAVING ATTACHED TO IT ( ON THE TOP OF THE COD-END ) A DEVICE , A SECOND PIECE OF NET ' ' . THAT WAS ADMITTED BY THE ACCUSED IN THE MAIN PROCEEDINGS , BUT HE CONTESTED LIEUTENANT COMMANDER ROGER ' S STATEMENT THAT ' ' THE SECOND PIECE OF NET NECESSARILY HAD THE EFFECT OF OBSTRUCTING OR DIMINISHING THE ORIGINAL NET ' ' .

7 IN THE COURSE OF THE PROSECUTION THE ACCUSED CONTENDED THAT ARTICLE 7 OF REGULATION NO 2527/80 DID NOT APPLY TO HIM ON THE GROUNDS , FIRST , THAT THE EXCEPTIONS PROVIDED FOR BY THE SECOND SENTENCE OF ARTICLE 7 HAD NOT BEEN ADOPTED BY THE COMMUNITY AT THE MATERIAL TIME AND SECONDLY THAT , SINCE THE MEMBER STATES WERE NO LONGER ENTITLED TO EXERCISE ANY POWER OF THEIR OWN IN THE MATTER OF CONSERVATION MEASURES IN THEIR TERRITORIAL WATERS , THE UNITED KINGDOM DID NOT HAVE THE POWER TO ADOPT MEASURES SUCH AS THOSE CONTAINED IN ARTICLE 8 ( 2 ) OF STATUTORY INSTRUMENT NO 1994 OF 1980 .

8 CONSIDERING THAT A DECISION OF THE COURT OF JUSTICE WAS NECESSARY TO ENABLE IT TO GIVE A RULING ON THOSE SUBMISSIONS , PLYMOUTH MAGISTRATES ' COURT REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE :

( A ) WHETHER ARTICLE 7 OF EEC REGULATION NO 2525/80 ( AS EXTENDED ) HAS ANY EFFECT WHEN NO DETAILED IMPLEMENTING RULES HAVE BEEN ADOPTED .

( B)IF NOT , HAS A MEMBER STATE ANY COMPETENCE TO ADOPT A MEASURE SUCH AS STATUTORY INSTRUMENT NO 1994 OF 1980?

( C)IF ARTICLE 7 DOES HAVE SOME EFFECT WHEN NO IMPLEMENTING RULES HAVE BEEN ADOPTED , HAS A MEMBER STATE ANY POWER TO DEFINE THE EXCEPTIONS TO THE PROHIBITION UPON NET ATTACHMENTS IN SUCH A WAY AS STATUTORY INSTRUMENT NO 1994 OF 1980 DOES?

( D)IF THE ANSWER IS ' ' NO ' ' TO QUESTIONS ( A ) ( B ) OR ( C ), WHAT RIGHTS RESULT FOR AN EEC CITIZEN PROSECUTED UNDER A LAW SUCH AS STATUTORY INSTRUMENT NO 1994 OF 1980?

FIRST QUESTION

9 THE FIRST QUESTION ASKS WHETHER ARTICLE 7 OF REGULATION NO 2527/80 CAN HAVE EFFECT EVEN THOUGH THE DETAILED IMPLEMENTING MEASURES PROVIDED FOR IN THE SECOND SENTENCE OF THAT ARTICLE WERE NOT ADOPTED BY THE COMPETENT COMMUNITY AUTHORITIES .

10 THE PURPOSE OF REGULATION NO 2527/80 IS TO ENSURE THE PROTECTION OF FISHING STOCKS AND ALSO A BALANCED EXPLOITATION OF THE RESOURCES OF THE SEA IN THE INTERESTS BOTH OF FISHERMEN AND OF CONSUMERS . IT FOLLOWS THAT THE PROHIBITION LAID DOWN IN THE FIRST SENTENCE OF ARTICLE 7 OF THE REGULATION CONSTITUTES AN ESSENTIAL PROVISION FOR THE ACHIEVEMENT OF THE OBJECTIVE PURSUED , SINCE WITHOUT THAT PROHIBITION THERE WOULD BE NO EFFECTIVE CONSERVATION MEASURE AT COMMUNITY LEVEL .

11 MOREOVER , THAT FIRST SENTENCE OF ARTICLE 7 OF REGULATION NO 2527/80 IS AN INDEPENDENT AND PERFECTLY CLEAR PROVISION , CREATING A PROHIBITION WITH IMMEDIATE EFFECT WHICH CANNOT DEPEND UPON THE ADOPTION OF THE DETAILED IMPLEMENTING RULES PROVIDED FOR IN THE SECOND SENTENCE OF ARTICLE 7 .

12 THE EXPRESSION ' ' DETAILED IMPLEMENTING RULES ' ' USED IN THE SECOND SENTENCE OF ARTICLE 7 REFERS TO THE DETERMINATION OF CERTAIN FISHING ATTACHMENTS THE USE OF WHICH APPEARS TO BE COMPATIBLE WITH THE PROHIBITION LAID DOWN IN THE FIRST SENTENCE AND NOT TO IMPLEMENTING MEASURES NECESSARY TO ENSURE THE FULL EFFECT OF THAT PROHIBITION . CONSEQUENTLY , THE FACT THAT THE DETAILED IMPLEMENTING RULES REFERRED TO IN ARTICLE 7 HAVE NOT BEEN ADOPTED CANNOT IN ANY EVENT PREVENT THE PROHIBITION LAID DOWN IN THE FIRST SENTENCE OF THAT ARTICLE FROM TAKING FULL EFFECT .

13 THE ANSWER TO THE FIRST QUESTION SHOULD THEREFORE BE THAT THE PROHIBITION IN ARTICLE 7 OF REGULATION NO 2527/80 TAKES FULL EFFECT EVEN THOUGH THE DETAILED IMPLEMENTING RULES PROVIDED FOR IN THE SECOND SENTENCE OF THAT ARTICLE HAVE NOT BEEN ADOPTED .

SECOND QUESTION

14 THE SECOND QUESTION , WHICH WAS ASKED ONLY IN THE EVENT OF THE FIRST QUESTION ' S BEING ANSWERED IN THE NEGATIVE , DOES NOT REQUIRE TO BE ANSWERED .

THIRD QUESTION

15 IN THE THIRD QUESTION THE NATIONAL COURT , HAVING ESTABLISHED THAT THE DETAILED IMPLEMENTING RULES PROVIDED FOR IN THE SECOND SENTENCE OF ARTICLE 7 HAVE NOT BEEN ADOPTED , REFERS TO THE LAW APPLICABLE IN THIS CASE . IN THAT REGARD IT MUST BE BORNE IN MIND THAT SINCE THE EXPIRY ON 1 JANUARY 1979 OF THE TRANSITIONAL PERIOD PROVIDED FOR IN ARTICLE 102 OF THE ACT OF ACCESSION THE POWER TO ADOPT , AS PART OF THE COMMON FISHERIES POLICY , MEASURES TO CONSERVE THE RESOURCES OF THE SEA VESTS FULLY AND FINALLY IN THE COMMUNITY .

16 CONSEQUENTLY , IT IS NECESSARY FIRST TO EXAMINE WHETHER ARTICLE 7 MAY BE INTERPRETED IN SUCH A WAY THAT , EVEN IN THE ABSENCE OF THE DETAILED IMPLEMENTING RULES PROVIDED FOR IN THE SECOND SENTENCE , IT IS POSSIBLE TO INFER DIRECTLY FROM THAT PROVISION WHETHER AND ON WHAT CONDITIONS THE USE OF DEVICES FOR THE PROTECTION OF NETS IS PERMITTED .

17 IN THIS REGARD IT SHOULD BE NOTED THAT UNTIL THE END OF THE TRANSITIONAL PERIOD THE USE OF DEVICES FOR THE PROTECTION OF FISHING NETS WAS PERMITTED UNDER THE RULES AND PRACTICE OF SEVERAL MEMBER STATES AND THAT ARTICLE 7 DOES NOT INTEND TO SUBSTITUTE FOR SUCH A POSSIBILITY A GENERAL PROHIBITION ON THE USE OF ALL , EVEN PROTECTIVE , DEVICES .

18 SUCH AN INTERPRETATION WOULD IN FACT BE CONTRARY TO THE PURPOSE OF ARTICLE 7 , THE FIRST SENTENCE OF WHICH , ALTHOUGH IT LAYS DOWN A GENERAL PROHIBITION , NEVERTHELESS DOES NOT EXCLUDE THE USE OF CERTAIN DEVICES . IT IS TRUE THAT THE AIM OF THE FIRST SENTENCE OF ARTICLE 7 , WHICH IS TO PROTECT FISHING STOCKS , REQUIRES THAT THE MESH OF FISHING NETS MAY NOT BE OBSTRUCTED OR DIMINISHED ; HOWEVER , THAT REQUIREMENT MUST BE QUALIFIED INASMUCH AS ACCOUNT SHOULD BE TAKEN OF THE FACT THAT FISHERMEN NEED TO USE CERTAIN TYPES OF DEVICE IN ORDER TO PROTECT THEIR FISHING NETS .

19 IT WOULD THEREFORE BE CONTRARY TO THE SCHEME OF REGULATION NO 2527/80 IF SUCH PROTECTION OF FISHING NETS COULD NOT BE TAKEN INTO CONSIDERATION SIMPLY BECAUSE DETAILED IMPLEMENTING RULES HAVE NOT BEEN ADOPTED .

20 THAT IS ALSO CLEAR FROM THE TERMS OF ARTICLE 7 . INDEED , THE BEGINNING OF THE SECOND SENTENCE ( ' ' THIS PROVISION DOES NOT EXCLUDE THE USE OF THE DEVICES . . . ' ' ) AND ALSO THE EXPRESSION ' ' DETAILED IMPLEMENTING RULES ' ' , USED TO QUALIFY THE PROVISIONS TO BE ADOPTED , SHOW CLEARLY THAT ALL THE RULES , INCLUDING THEREFORE THE PERMISSION TO USE DEVICES FOR THE PROTECTION OF NETS , MUST HAVE IMMEDIATE EFFECT AND THAT THE ESSENTIAL TASK OF THE COMMISSION AND THE MANAGEMENT COMMITTEE WAS MERELY TO GIVE FORMAL EXPRESSION TO THAT PERMISSION IN IMPLEMENTING LEGISLATION .

21 IN THE ABSENCE OF SUCH LEGISLATION , IT IS FOR THE COMPETENT COURTS TO FILL THE RESULTING LACUNA IN A MANNER WHICH IS CONSISTENT WITH THE AIM OF PROTECTING FISHING STOCKS AND WHICH ALSO TAKES INTO ACCOUNT THE FACT THAT PROTECTION OF FISHING NETS SHOULD BE PERMITTED .

22 UNDER THOSE CIRCUMSTANCES , IT APPEARS THAT THE THIRD QUESTION DOES NOT REQUIRE ANY OTHER ANSWER .

23 THE ANSWER TO BE GIVEN TO THE NATIONAL COURT SHOULD THEREFORE BE THAT ARTICLE 7 OF REGULATION NO 2527/80 DOES NOT PROHIBIT THE USE OF DEVICES DESIGNED TO PROTECT FISHING NETS , PROVIDED THAT THE USE OF SUCH DEVICES IS COMPATIBLE WITH THE PURPOSE OF ARTICLE 7 .

FOURTH QUESTION

24 IN SO FAR AS THE USE OF DEVICES FOR THE PROTECTION OF FISHING NETS IS COMPATIBLE WITH COMMUNITY LAW , THE FOURTH QUESTION HAS CEASED TO HAVE ANY PURPOSE .

Decision on costs

COSTS

25 THE COSTS INCURRED BY THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER ),

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY PLYMOUTH MAGISTRATES ' COURT BY ORDER OF 7 AUGUST 1981 , HEREBY RULES :

1 . THE PROHIBITION IN ARTICLE 7 OF REGULATION NO 2527/80 OF 30 SEPTEMBER 1980 LAYING DOWN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES ( OFFICIAL JOURNAL 1980 , L 258 , P . 1 ) TAKES FULL EFFECT EVEN THOUGH THE DETAILED IMPLEMENTING RULES PROVIDED FOR IN THE SECOND SENTENCE OF THAT ARTICLE HAVE NOT BEEN ADOPTED .

2 . ARTICLE 7 OF REGULATION NO 2527/80 DOES NOT PROHIBIT THE USE OF DEVICES DESIGNED TO PROTECT FISHING NETS , PROVIDED THAT THE USE OF SUCH DEVICES IS COMPATIBLE WITH THE PURPOSE OF ARTICLE 7 .