207/84 · GlobalLawDB

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Judgment of the Court (Fourth Chamber)3 October 1985^noteIn Case 207/84REFERENCE to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry] The Hague, for a preliminary ruling in the proceedings pending before that court betweenRederij L. de Boer en Zonen BVandProduktschap voor Vis en Visprodukten [Fish and Fish Products Board],THE COURT (Fourth Chamber)composed of: G. Bosco, President of Chamber, P. Pescatore, T. Koopmans, K. Bahlmann and T. F. O'Higgins, Judges,Advocate General: G. F. ManciniRegistrar: H. A. Rühl, Principal Administratorafter considering the observations submitted on behalf of:Rederij de Boer, by H. J. Bronkhorst of the Hague Bar,the Netherlands Government, by A. Bos, acting as Agent,the French Government, by M. Botte, acting as Agent,the Commission of the European Communities, by R. C. Fischer, acting as Agent,after hearing the Opinion of the Advocate General delivered at the sitting on 2 July 1985,gives the following

Judgment

(The account of the facts and issues which is contained in the complete text of the judgment is not reproduced)

Decision

1By a judgment dated 7 August 1984, which was received at the Court on 16 August 1984, the College van Beroep voor het Bedrijfsleven referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of inter alia Council Regulation No 3796/81 of 29 December 1981 on the common organization of the market in fishery products (Official Journal 1981, L 379, p. 1) and Council Regulation No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (Official Journal 1983, L 24, p. 1) in order to determine whether the Besluit Regeling Maatjesharingvisserij Noordzee (Vb. BO 1983, 22-15, No W, p. 17) [Order regulating fishing for maatjesharing iri the North Sea] adopted by the President of the Produktschap voor Vis en Visprodukten [Fish and Fish Products Board] which entered into force on 28 May 1983 is compatible with those regulations.

2Maatjesharing are herring caught in June and July in the central and northern parts of the North Sea. They are young, sexually immature herring which are distinguished by having a higher fat content and being more tender. Because of those qualities they are not very suitable for processing but when gutted and slightly salted are highly appreciated, especially by consumers in the Netherlands.

3The question referred to the Court arose in proceedings between the shipping company, L. de Boer en Zonen BV (hereinafter referred to as ‘de Boer’) and the Produktschap voor Vis en Visprodukten (hereinafter referred to as ‘Produktschap’). De Boer is challenging before the national court a decision taken by the Produktschap on 4 July 1984 on the basis of the aforesaid order to withdraw de Boer's licences to fish for herring in the northern and central areas of the North Sea in 1983 on the ground that de Boer had landed ungutted, strongly salted herring.

The relevant legislation and the background to the main proceedings

4Regulation No 3796/81 establishes a common organization of the market in fishing products comprising a price system and rules on trade with nonmember countries as well as common rules on competition; it applies inter alia to chilled or frozen fresh fish (alive or dead). The regulation provides inter alia for the application of marketing standards, the formation of producers' organizations having the power to require their members to comply with certain rules, particularly in respect of production and marketing, and for the possibility of introducing an intervention system.

5Prompted by the consideration that the Community must ensure the conservation and replenishment of stocks by means of an appropriate policy for the protection of fishing grounds, the Council enacted Regulation No 170/83. Article 1 of the regulation provides that: ‘In order to ensure the protection of fishing grounds, the conservation of the biological resources of the sea and their balanced exploitation on a lasting basis and in appropriate economic and social conditions, a Community system for the conservation and management of fishery resources is hereby established. For these purposes, the system will consist, in particular, of conservation measures, rules for the use and distribution of resources ... and supervisory measures.’ Articles 3 and 4 provide that the total catches may be limited; the volume of the catches available to the Community are to be ‘distributed between the Member States in a manner which assures each Member State relative stability of fishing activities for each of the stocks considered'. Article 5 (2) provides that ’Member States shall determine, in accordance with the applicable Community provisions, the detailed rules for the utilization of the quotas allocated to them'. Finally, Article 13 provides for the establishment of a Management Committee for Fishery Resources which delivers opinions on the measures to be taken by the Commission for managing fishery resources (Article 14 (2)).

6With reference to Regulation No 170/83 and to the fact that fishing for herring in the northern and central North Sea was prohibited ‘until such time as the Council takes a decision on the Commission's proposals concerning ... quotas applicable in 1983’ Council Regulation No 1353/83 of 26 May 1983 (Official Journal L 139, p. 54) fixed provisional quota allocations for herring stocks in the northern and central North Sea. Article 1 of that regulation provides that fishing for herring is to be authorized in the northern and central North Sea from 1 June 1983. However, it authorizes Netherlands fishermen to begin fishing on 28 May 1983 because, according to the fourth recital of the preamble to the regulation, in their case ‘historical tradition justifies that fishing for such herring may start on 28 May 1983’.

7The provisional quota for the Netherlands was fixed in the annex to that regulation at 3000 tonnes.

8Netherlands legislation has entrusted the task of administering the Netherlands quota to the Produktschap voor Vis en Visprodukten, which is a Netherlands trade organization governed by public law. Produktschapen, such as the defendant in the present case, perform certain duties governed by public law in a certain sector of the economy; they may adopt decisions having legislative character.

9Exercising the powers conferred on it by the Netherlands legislation the Produktschap adopted the aforesaid order, Article 2 of which provided that fishing for herring in the northern and central parts of the North Sea without a fishing licence valid for 1983 was prohibited. According to Article 5 (b), a licence could be issued only on the condition that the herring caught could be salted and gutted on board the vessel for which the licence was requested. Article 6 provided that the Produktschap could withdraw a licence if those provisions were not observed. Finally, Article 9 provided that any herring caught had to be either salted and gutted or deep-frozen on board. Any other treatment or processing of the herring was therefore prohibited.

10According to the national court, the object of the aforesaid order was to restrict the limited quota allocated to the Netherlands to the landing of maatjesharing. The Produktschap thus sought to maintain the Netherlands fishing tradition requiring Netherlands fishermen to land during June and July a large quantity of maatjesharing to satisfy Netherlands consumer demand. In allocating the quota to the traditional herring fishermen the Produktschap intended to prevent the quota from being used for fishing for herring which would not be landed as maatjesharing but as strongly salted, ungutted herring.

11Licences to fish for herring were issued to de Boer on the basis of the order. However, the licences were withdrawn by the decision challenged in the main proceedings because de Boer's vessels had landed strongly salted, ungutted herring.

The question submitted to the Court

12According to its judgment referring the case to the Court, the College van Beroep is inclined to take the view that rules which restrict access to the quota to fishermen able to bring back maatjesharing from the fishing area in question cannot for that reason be regarded as unlawful. However, if the rules have the effect that herring of good quality caught as part of the quota is barred from the market because it has been processed into a product other than maatjesharing, the question arises whether this constitutes a breach of the freedoms protected by the EEC Treaty. The national court has therefore referred the following question to the Court for a preliminary ruling:‘Are national rules such as are laid down in the 1983 Order administering a limited quota of the kind involved in this case prohibited under Community law, as it stands at present, because they have the effect of preventing herring caught in the sectors of the North Sea covered by the quota from being marketed in a certain processed form, namely ungutted and strongly salted, even if herring treated in that way in itself satisfies the national and Community provisions in force?’

13That question in substance seeks to establish whether Community law, in particular Regulations Nos 170/83, 1353/83 and 3716/81, must be interpreted as precluding rules adopted by a body belonging to a trade organization of a Member State and entrusted with duties governed by public law which, for the purpose of regulating the marketing of herring, provide that only fishermen whose vessels are equipped for salting and gutting herring on board may receive a herring-fishing licence giving access to the quota and that the herring caught must be either gutted and salted or deep-frozen on board the vessel.

Observations submitted to the Court

14De Boer explains that its herring catches were so big that it was impossible to gut all the herring caught. It therefore gutted only the herring which, because of their maturity and size, could be sold as maatjesbaring; the other herring, which was left ungutted and was strongly salted, it exported to another Member State.

15As regards the substance of the case, de Boer claims that the Netherlands rules are incompatible with Community law. In the first place, under the fishing arrangements laid down in Regulation No 3796/81, only the Community and producers' organizations have the power to determine quality standards for herring. Secondly, it is clear from the case-law of the Court that all national provisions or practices which might alter the pattern of imports and exports by preventing producers from freely marketing the products concerned are incompatible with the common organization of the market; that is the position in this case.

16De Boer also observes that in seeking to restrict the quota allocated to the Netherlands to maatjesharitig the national rules contravened the principle of proportionality inasmuch as they prohibited the strong salting of herring which because of their size and age were no longer suitable for marketing as maatjesbaring. The Netherlands rules in question were also discriminatory and arbitrary because they allowed herring to be frozen on board but remained silent as to the form in which such frozen herring were finally to be marketed.

17The Netherlands Government states that the aim of the national rules in question was twofold: to control the number of vessels which might fish and to use the herring quota in the most economic way. The ban on the landing of ungutted, strongly salted herring ensured that the herring brought to market would be mainly maatjesharing. That use of the quota was consistent with the tradition of fishing for that specific kind of herring and at the same time, given the high price of maatjesharing, enabled the fishery resources to be exploited in the most rational way.

18In the view of the Netherlands Government, Community law does not preclude the rules in question. Article 5 (2) of Regulation No 170/83 gives a wide discretion to the Member States in administering the quotas. Furthermore, Article

20of Council Regulation No 171/83 of 25 January 1983, laying down certain technical measures for the conservation of fishery resources (Official Journal 1983, L 24, p. 14), provides that Member States may take even stricter measures to ensure better management and better use of the quotas allocated. The rules are not too restrictive or discriminatory either. No restrictions were placed on herring fishing in other areas or during September and October 1983. Access to the quota in question was also open without discrimination to all the fishermen concerned. Participation was subject to only a few conditions based on objective criteria. Finally, there was no question of an obstacle to free movement of goods because ungutted, strongly salted herring could be landed under other quotas opened for the Netherlands. Besides, there can be no normal market mechanism where there are restrictions on catches.

19The French Government, which submitted oral observations, agrees with the Netherlands Government that the measures adopted by the Produktschap are intra vires. It bases its view on the first sentence of Article 5 (2) of Regulation No 170/83 on which a broad interpretation must be placed if only because the Management Committee, which was if necessary to adopt rules for implementing that provision, has not considered it expedient to determine the scope of the rules governing the use of the quota. The French Government then refers to the judgment of the Court of 7 February 1984 in Jongeneel Kaas BV and Others v The Netherlands [1984] ECR 483 in which the Court held that, in the absence of any Community rules, the Member States retain the power to lay down rules for achieving a balance between supply and demand. It is precisely the adjustment of supply to demand which plays a vital role in the common organization of the market in fishing but it does not exclude the role of the national authorities. It is clear in particular from the preamble to Regulation No 3796/81 that the measures adopted by the Produktschap are consistent with the aims of the regulations in force. Nor are they contrary to the principle of the free movement of goods once the criteria laid down by the Court in the Jongeneel Kaas case are applied.

20It is only as an alternative submission that the French Government suggests that the Court should rule that producers' organizations have the power to adopt measures such as those adopted by the Produktschap.

21In the Commission's view, two different national measures must be examined in the present case: the first restricts shares in the quota to fishermen who are able to process herring into maatjesharing and the other requires fishermen to treat or process catches in a certain way in order to regulate the supply of maatjesharing.

22As regards access to the quota, the Commission concludes from Articles 2 and 4 of Regulation No 170/83 that the purpose of the provisions which the Member States must adopt regarding the utilization of the quotas allocated to them is to spread the fishing restrictions amongst the fishermen concerned. The first measure restricting shares in the quota to a certain category of fisherman is, in the Commission's opinion, in line with Regulations Nos 170/83 and 1353/83 and consistent with the Community provisions in force.

23As regards the national rules governing the treatment and processing of herring, the Commission refers to Regulation No 3796/81 from which it infers that producers' organizations have been entrusted with important duties, especially in the implementation of intervention measures, the adoption and implementation of catch plans, the concentration of supply of the various products and the quantitative and qualitative adjustments of supply to market requirements. The Commission also draws attention to Article 2 of Regulation No 3796/81 which provides for the possibility of determining common marketing standards for all the products covered by the common organization of the market; such standards have been adopted for the size and freshness of the most important fish varieties, including herring.

24The Commission submits that, according to the established case-law of the Court, as soon as the Community, acting pursuant to Article 40 of the EEC Treaty, has adopted regulations establishing a common organization of the market in a particular sector, as in the present case, the Member States must refrain from adopting any measure which might derogate from them or encroach upon them. In the fisheries sector, the only way in which the Member States may intervene on the market is by making certain rules of producers' organizations binding on all producers. In effect, the national measure in question not only bans a particular method of processing but also directly prohibits the marketing of herring in an untreated state, which is directly contrary to the principle of an open market and free trade between the Member States.

25Finally, the Commission observes that the measure in question is unrelated to any qualitative requirement for maatjesharing. Even assuming that it may be regarded as a quality standard, it is incompatible with the market organization because it clearly falls within the powers of the producers' organizations.

The conditions governing fishermen's access to the quota

26It must be noted that, as far as the criteria for receiving a fishing licence are concerned, Article 1 of Regulation No 170/83 establishes ‘a Community system for the conservation and management of fishery resources’ and Article 5 (2) empowers the Member States to determine ‘in accordance with the applicable Community provisions, the detailed rules for the utilization of the quotas allocated to them’.

27Regulation No 1353/83, which authorizes a limited quantity of herring to be caught from stocks in the northern and central North Sea and allocates quotas to the Member States, expressly refers to Regulation No 170/83. It was therefore adopted as part of the Community's policy for protecting fishing grounds and for conserving and replenishing stocks. It follows that the determination of the detailed rules for the utilization of the herring quotas allocated to Member States by Regulation No 1353/83 is left to the national authorities.

28If national rules restrict the number of vessels which may fish for herring by making it a condition for access to the quota that the fisherman applying for a quota share must have the capacity to process the herring caught into maatjesharing (i.e. the capacity to gut and lightly salt them), such rules constitute detailed rules for the utilization of the quota within the meaning of Article 5 (2) of Regulation No 170/83 which are within the powers of the Member States and compatible with the provisions and aim of that regulation and of Regulation No 1353/83.

29It must therefore be held that Community law, in particular Council Regulation No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources and Council Regulation No 1353/83 of 26 May 1983 fixing provisional quota allocations for herring stocks in the northern and central North Sea, do not preclude rules adopted by a body belonging to a trade organization of a Member State and entrusted with duties governed by public law which provide that only fishermen whose vessels are equipped for salting and gutting herring on board may receive a licence to fish for herring.

The measures governing treatment and processing

30As far as concerns rules adopted by a public body providing that herring caught as part of the quota allocated to the Member States by Regulation No 1352/83 must be either gutted and salted or deep-frozen on board the vessel, it must be stated that such rules are not related to the aims set out in Article 1 of Regulation No 170/83, namely to protect and conserve fishing grounds and ensure their balanced exploitation, but must be regarded as rules governing the marketing of the product in question.

31As regards the marketing of products in the fishery sector, Regulation No 3796/81 provides for a number of measures to stabilize markets, to apply common marketing standards to the relevant products and to ensure fair prices through intervention measures. As regards in particular measures to concentrate supply and stabilize prices, the second indent of the second subparagraph of Article 5 (1) of Regulation No 3796/81 empowers producers' organizations to adopt measures requiring their members ‘to apply, with regard to production and marketing, rules which have been adopted by the organization with the particular aim of improving product quality and adapting the volume of supply to market requirements’. To that end Article 7 of the regulation empowers the Member States to require producers who are not members of a producers' organization to comply with the marketing rules referred to in Article 5.

32Those provisions therefore empower only the producers' organizations to adopt marketing rules binding on their members and restrict the power of the Member States to the possibility of requiring nonmembers to comply with such marketing rules.

33It follows that, unlike the Community provisions governing access to catch quotas which allow the national authorities to retain certain powers, the Community rules on production and marketing no longer leave them any power to adopt rules on the treatment and processing of fishery products by the fishermen established in their territory.

34As to the argument of the Netherlands Government based on Article 20 of Regulation No 171/83 to the effect that, in order to ensure better management and utilization of the quotas, the Member States may adopt national technical measures going beyond the minimum requirements of Regulation No 171/83, it need only be observed that the said regulation is based on Regulation No 170/83 and relates only to technical measures for the conservation of fishery resources. However, the rules on the treatment and processing of the fish in question impose no technical measure for conserving fishery resources on fishermen.

35It must therefore be held that Council Regulation No 3796/81 of 29 December 1981 on the common organization of the market in fishery products, in particular the second subparagraph of Article 5 (1) thereof, must be interpreted as precluding rules adopted by a body belonging to a trade organization of a Member State and entrusted with duties governed by public law which provide that the herring caught must be either gutted and salted or deep-frozen on board the vessel.

Costs

36The costs incurred by the Netherlands and French Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action 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 questions referred to it by the College van Beroep voor het Bedrijfsleven by judgment of 7 August 1984, hereby rules: Community law, in particular Council Regulation No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources and Council Regulation No 1353/83 of 26 May 1983 fixing provisional quota allocations for herring stocks in the northern and central North Sea, do not preclude rules adopted by a body belonging to a trade organization of a Member State and entrusted with duties governed by public law which provide that only fishermen whose vessels are equipped for salting and gutting herring on board may receive a licence to fish for herring. However, Council Regulation No 3796/81 of 29 December 1981 on the common organization of the market in fishery products, in particular the second subparagraph of Article 5(1) thereof, must be interpreted as precluding rules adopted by such a body which provide that the herring caught must be either gutted and salted or deep-frozen on board the vessel.

Delivered in open court in Luxembourg on 3 October 1985.