ORDER OF THE COURT (Eighth Chamber)

1 March 2022 ( )

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Common fisheries policy – Regulation (EC) No 1224/2009 – Control system for ensuring compliance with the rules of the common fisheries policy – Article 89 – Measures to ensure compliance – Article 90 – Criminal sanctions – Principle of proportionality – Interpretation of the judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112))

In Case C‑493/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal (Ireland), made by decision of 27 July 2021, received at the Court on 11 August 2021, in criminal proceedings against

K. M.

other party:

Director of Public Prosecutions,

THE COURT (Eighth Chamber),

composed of N. Jääskinen, President of the Chamber, M. Safjan (Rapporteur) and N. Piçarra, Judges,

Advocate General: L. Medina,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 This request for a preliminary ruling concerns the interpretation of the principle of proportionality enshrined in Article 49(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Articles 89 and 90 of 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 The request has been made in the context of criminal proceedings brought against K. M., the master of a fishing vessel, for carrying on board equipment capable of automatically grading by size herring, mackerel or horse mackerel without the equipment being installed or located on the vessel in such a way as to ensure immediate freezing or to prevent the return of marine organisms to the sea.

Legal context

3 Article 89 of Regulation No 1224/2009, headed ‘Measures to ensure compliance’, states in paragraphs 1 to 3:

‘1. Member States shall ensure that appropriate measures are systematically taken, including administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons suspected of a breach of any of the rules of the common fisheries policy.

2. The overall level of sanctions and accompanying sanctions shall be calculated, in accordance with the relevant provisions of national law, in such way as to make sure that they effectively deprive those responsible of the economic benefit derived from their infringement without prejudice to the legitimate right to exercise their profession. Those sanctions shall also be capable of producing results proportionate to the seriousness of such infringements, thereby effectively discouraging further offences of the same kind.

3. Member States may apply a system whereby a fine is proportionate to the turnover of the legal person, or to the financial advantage achieved or envisaged by committing the infringement.’

4 Article 90 of Regulation No 1224/2009, headed ‘Sanctions for serious infringements’, provides:

‘1. In addition to Article 42 of [Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999 (OJ 2008 L 286, p. 1)], the following activities shall also be considered as serious infringements …

…

(c) the failure to land any species subject to a quota caught during a fishing operation, unless such landing would be contrary to obligations provided for in the rules of the common fisheries policy in fisheries or fishing zones where such rules apply.

2. Member States shall ensure that a natural person having committed or a legal person held liable for a serious infringement is punishable by effective, proportionate and dissuasive administrative sanctions, in accordance with the range of sanctions and measures provided for in Chapter IX of Regulation … No 1005/2008.

3. Without prejudice to Article 44(2) of Regulation … No 1005/2008, the Member States shall impose a sanction that is effectively dissuasive and, as appropriate, calculated on the value of the fisheries products obtained by committing a serious infringement.

4. In fixing the sanction, the Member States shall also take into account the value of the prejudice to the fishing resources and the marine environment concerned.

5. Member States may also, or alternatively, use effective, proportionate and dissuasive criminal sanctions.

6. The sanctions provided for in this Chapter may be accompanied by other sanctions or measures, in particular those described in Article 45 of Regulation … 1005/2008.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

5 The case in the main proceedings has the same legal and factual background as that of the case which gave rise to the judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112).

6 In that judgment, the Court ruled that Articles 89 and 90 of Regulation No 1224/2009, read in the light of the principle of proportionality enshrined in Article 49(3) of the Charter, must be interpreted as meaning that, subject to the verifications which it is for the referring court to carry out, they do not preclude a national provision which, to penalise a breach of Article 32 of Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms (OJ 1998 L 125, p. 1), as amended by Regulation (EU) No 227/2013 of the European Parliament and of the Council of 13 March 2013 (OJ 2013 L 78, p. 1) (‘Regulation No 850/98’), provides for not only the imposition of a fine but also the mandatory forfeiture of the catches and the prohibited or non-compliant fishing gear found on board the vessel concerned.

7 Since it harbours doubts as to the scope of the judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112), the Court of Appeal (Ireland), the referring court, made the present request for a preliminary ruling, seeking clarification as to the compatibility of the national law at issue in the main proceedings with Regulation No 1224/2009, read in the light of the principle of proportionality enshrined in Article 49(3) of the Charter, and as to whether the national court called upon to rule on sanctions must have discretion in order to be able to modulate, where appropriate, those sanctions in accordance with the requirements set out in Articles 89 and 90 of that regulation. To that end, it added two further questions to the single question it had asked in its order for reference which gave rise to that judgment.

8 In those circumstances, the Court of Appeal decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) In the context of the implementation of the Common Fisheries Policy and of the provisions of Article 32 of [Regulation No 850/1998], and in the context of a criminal prosecution taken to enforce the provisions thereof, is a provision of National law which provides on conviction on indictment, in addition to a fine, for the mandatory forfeiture of all fish and all fishing gear found on board the boat to which the offence relates, compatible with the provisions of [Regulation No 1224/2009], and specifically Articles 89 and 90 thereof, and the principle of proportionality under the treaties … and Article 49(3) of the [Charter]?

(2) Do the terms of Article 89 and/or 90 of [Regulation No 1224/2009], 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 [No] 1224/2009?

(3) 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) [of the Sea Fisheries and Maritime Jurisdiction Act 2006] 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?’

Consideration of the questions referred

9 Under Article 99 of its Rules of Procedure, the Court may, in particular, where the reply to a question referred for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, decide at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to rule by reasoned order.

10 That provision should be applied in the present case.

11 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 89 and 90 of Regulation No 1224/2009, read in the light of the principle of proportionality enshrined in Article 49(3) of the Charter, must be interpreted as meaning that, to penalise a breach of Article 32 of Regulation No 850/98, they confer on the national courts jurisdiction to adjust, modulate or mitigate the extent of the mandatory forfeiture order in respect of all catch and all fishing gear found on board the vessel concerned, in relation to the seriousness of the infringement committed or to circumstances such as those referred to in Articles 89 and 90 of Regulation No 1224/2009, and to examine the impact of the sanction on the right to earn a livelihood of a person convicted.

12 In that regard, it should be noted that Articles 89 and 90 of Regulation No 1224/2009 give the Member States the responsibility of ensuring that appropriate measures are taken to penalise infringements of the rules of the common fisheries policy. Without requiring particular sanctions, those articles lay down certain criteria that the Member States must take into account and the principle that the sanctions must be effective, proportionate and dissuasive (judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel), C‑77/20, EU:C:2021:112, paragraph 30).

13 Thus, in accordance those criteria as resulting from Articles 89 and 90 of Regulation No 1224/2009, the choice of sanctions is left to the discretion of the Member States, which must, however, exercise that power in accordance with EU law and its general principles, and consequently in accordance with the principle of proportionality (see, to that effect, judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel), C‑77/20, EU:C:2021:112, paragraphs 35 and 36 and the case-law cited).

14 In particular, the administrative or punitive measures permitted under national legislation must not go beyond what is necessary in order to attain the objectives legitimately pursued by that legislation (judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel), C‑77/20, EU:C:2021:112, paragraph 37 and the case-law cited).

15 Furthermore, the severity of the sanctions must be commensurate with the seriousness of the breaches for which they are imposed, in particular by ensuring a genuinely dissuasive effect, while respecting the general principle of proportionality (judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel), C‑77/20, EU:C:2021:112, paragraph 38 and the case-law cited).

16 In the light of those criteria, the Court provided interpretative guidance, in paragraphs 40 to 56 of the judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112), in order to enable the national court to determine whether, in the case which gave rise to that judgment, in relation to the infringement committed by K. M., the mandatory forfeiture of catches and prohibited or non-compliant fishing gear, in addition to a fine, is proportionate to the attainment of the objective legitimately pursued by the prohibition, laid down in Article 32(1) of Regulation No 850/98, relating to grading equipment.

17 It should be noted that, in that context, the Court took into account, in particular in paragraphs 44, 45, 51 and 52 of the judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112), the mandatory nature of the forfeiture of catches and prohibited or non-compliant fishing gear in respect of certain offences established by the national legislation at issue in the main proceedings and the fact that the national courts, as a result, could not influence the extent of the forfeiture.

18 Following that examination, the Court ruled, as recalled in paragraph 6 of the present order, that Articles 89 and 90 of Regulation No 1224/2009, read in the light of the principle of proportionality enshrined in Article 49(3) of the Charter, must be interpreted as meaning that, subject to the verifications which it is for the referring court to carry out, they do not preclude a national provision which, to penalise a breach of Article 32 of Regulation No 850/98, provides for not only the imposition of a fine but also the mandatory forfeiture of the catches and the prohibited or non-compliant fishing gear found on board the vessel concerned.

19 In the present case, the referring court states that the applicable national legislation provides not only for the mandatory forfeiture solely of prohibited or non-compliant fishing gear and of catch obtained as a result of the use of that gear, but also the mandatory forfeiture of all catch and all fishing gear found on board the vessel, without any causal link being required under that legislation between the offending behaviour and the subject matter of the confiscation and forfeiture order.

20 Furthermore, the referring court observes that, in the present case, the national sentencing court did not find that the offence was a ‘serious infringement’ within the meaning of Regulation No 1005/2008, and states that, in that context, the prosecution of an offence on indictment, involving a jury, does not necessarily reflect the seriousness of the offence. The referring court also states that the mandatory forfeiture of all catch and all fishing gear found on board the vessel concerned applies irrespective of the seriousness of the infringement of the provisions of that regulation.

21 In that regard, it should be noted that it is for the referring court, in accordance with the assessment criteria provided by the Court, in paragraphs 40 to 56 of the judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112), to assess whether, in relation to the infringement committed by K. M., the mandatory forfeiture of all catch and all gear found on board the vessel, in addition to a fine, is proportionate to the attainment of the objective legitimately pursued by the prohibition, laid down in Article 32(1) of Regulation No 850/98, relating to grading equipment.

22 Furthermore, it must be borne in mind that, as is apparent from paragraphs 54 and 55 of the judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112), it is for the referring court to assess the possible impact of the sanction on the offender as regards his or her legitimate right to exercise a profession, in accordance with Article 89(2) of Regulation No 1224/2009. In connection with that assessment, that court must also take into consideration the impact of the sanction on the offender’s right to earn a livelihood.

23 It is only following that assessment that the referring court would be required, if necessary, to examine the need to adjust, modulate or mitigate the extent of the forfeiture order in respect of the catch and the fishing gear.

24 It should also be noted in that context that, as recalled in paragraph 11 of the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1) although, in order to deliver its decision, the Court necessarily takes into account the legal and factual context of the dispute in the main proceedings, as defined by the referring court or tribunal in its request for a preliminary ruling, it does not itself apply EU law to that dispute. When ruling on the interpretation or validity of EU law, the Court makes every effort to give a reply which will be of assistance in resolving the dispute in the main proceedings, but it is for the referring court or tribunal to draw case-specific conclusions. For those reasons, the interpretation provided by the Court is usually expressed in abstracto (judgment of 25 October 2018, Roche Lietuva, C‑413/17, EU:C:2018:865, paragraph 43).

25 In addition, it must be borne in mind that the principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States. That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (judgment of 18 May 2021, Asociația ‘Forumul Judecătorilor din România’ and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 244).

26 In the present case, it is for the referring court, in the light of the interpretative guidance set out above, to assess specifically whether the national legislation at issue in the main proceedings is compatible with Articles 89 and 90 of Regulation No 1224/2009, read in the light of the principle of proportionality enshrined in Article 49(3) of the Charter (see, by analogy, judgment of 25 October 2018, Roche Lietuva, C‑413/17, EU:C:2018:865, paragraph 44).

27 In the light of all the foregoing considerations, the answer to the questions referred for a preliminary ruling is that Articles 89 and 90 of Regulation No 1224/2009, read in the light of the principle of proportionality enshrined in Article 49(3) of the Charter, must be interpreted as meaning that it is for the national courts to assess, in accordance with the assessment criteria provided by the Court in the judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112), whether, in relation to the infringement committed, including its seriousness, the mandatory forfeiture of all catch and all fishing gear found on board the vessel concerned is proportionate to the attainment of the objective legitimately pursued by the prohibition, laid down in Article 32(1) of Regulation No 850/98, relating to grading equipment, and to examine, if necessary, the need to adjust, modulate or mitigate the extent of the forfeiture order in respect of the catch and the fishing gear.

Costs

28 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, the Court (Eighth Chamber) hereby rules:

Articles 89 and 90 of 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, read in the light of the principle of proportionality enshrined in Article 49(3) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it is for the national courts to assess, in accordance with the assessment criteria provided by the Court in the judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112), whether, in relation to the infringement committed, including its seriousness, the mandatory forfeiture of all catch and all fishing gear found on board the vessel concerned is proportionate to the attainment of the objective legitimately pursued by the prohibition, laid down in Article 32(1) of Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms, as amended by Regulation (EU) No 227/2013 of the European Parliament and of the Council of 13 March 2013, relating to grading equipment, and to examine, if necessary, the need to adjust, modulate or mitigate the extent of the forfeiture order in respect of the catch and the fishing gear.

Luxembourg, 1 March 2022.

A. Calot Escobar N. Jääskinen