Procurator Fiscal v Andrew Marshall (C-370/88)

Contents

Judgment of the Court (Fifth Chamber)13 November 1990^noteIn Case C-370/88,REFERENCE to the Court under Article 177 of the EEC Treaty by the High Court of Justiciary (Scotland) for a preliminary ruling in the proceedings pending before that court betweenProcurator Fiscal, Stranraer,andAndrew Marshall,THE COURT (Fifth Chamber),composed of: J. C. Moitinho de Almeida, President of Chamber, Sir Gordon Slynn, R. Joliét, F. Grévisse and M. Zuleeg, Judges,Advocate General: G. TesauroRegistrar: H. A. Rühi, Principal Administrator,after considering the observations submitted on behalf ofthe United Kingdom of Great Britain and Northern Ireland, by J. E. Collins, acting as Agent,the Commission of the European Communities, by Peter Oliver, a member of its Legal Department, acting as Agent,the Council of the European Communities, by Moyra Sims-Robertson, a member of its Legal Department, acting as Agent,having regard to the Report for the Hearing,after hearing oral argument from Mr Marshall, represented by J. Clarke, QC, the United Kingdom, the Council of the European Communities and the Commission of the European Communities at the hearing on 2 May 1990,after hearing the Opinion of the Advocate General delivered at the sitting on 6 June 1990,gives the following

Judgment

1By interlocutor dated 23 November 1988 which was received at the Court on 21 December 1988, the High Court of Justiciary referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions on the interpretation of Article 7 and Article 40(3) of the EEC Treaty and on the validity and interpretation of Article 19 of Council Regulation (EEC) 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).

2The questions were raised in criminal proceedings brought against Mr Marshall, a British fisherman resident in Scotland, for unlawfully carrying in his fishing boat a monofilament gill net.

3Article 19 of Council Regulation No 171/83, cited above, authorizes the Member States to lay down special measures with regard to the conservation of fishery resources.

4Article 19 reads as follows:1. In the case of strictly local stocks of interest to the fishermen of one Member State only, that Member State may take measures for the conservation and management of those stocks, provided that such measures are compatible with Community law and are in conformity with the common fisheries policy.2. Member States shall be authorized to lay down any strictly local conditions or detailed arrangements, applying to their national fishermen only, designed to limit the catches by technical measures in addition to those defined in the Community regulations, provided that such measures are compatible with Community law and are in conformity with the common fisheries policy.3. Before adopting any measures referred to in paragraphs 1 and 2, the Member State concerned shall obtain the agreement of the Commission on the finding that the measures are in conformity with one or other of these paragraphs.The Commission shall take a reasoned decision within three months of a request being submitted under the terms of the first subparagraph.’

5On 14 January 1986, the Secretary of State for Scotland, having obtained the agreement of the Commission, made, pursuant to Article 19(2) of Regulation No 171/83, an order relating to the conservation of fishery resources, the Inshore Fishing (Prohibition of Carnage of Monofilament Gill Nets) (Scotland) Order 1986, SI 1986/60, (hereinafter referred to as ‘the Order’) This Order, which applies only to British fishermen, prohibits them from carrying monofilament gill nets when they are sailing in waters adjacent to the coast of Scotland within a limit of six miles.

6According to the United Kingdom, the Order aims at ensuring compliance with an earlier order prohibiting the use of such nets for salmon fishing in those waters.

7On 20 September 1986 Mr Marshall's boat was inspected in waters adjacent to the coast of Scotland. A net of the type prohibited by the Order was found on board.

8In criminal proceedings against him in the Sheriff Court at Stranraer, Mr Marshall maintained, inter alia, that the Order was unlawful on the ground that it discriminated against British fishermen and, in particular, Scottish fishermen in comparison with other Community fishermen. In the first place, only British fishermen were prohibited from carrying the nets in question. Further, the discrimination affected more particularly British fishermen operating from Scottish ports. Such fishermen, unlike fishermen from other Member States and British fishermen not operating from Scottish ports, were not in a position to use monofilament gill nets where their use was authorized, since they were not permitted to carry them across the waters surrounding their home ports.

9The Sheriff of Stranraer accepted Mr Marshall's argument and dismissed the complaint. On appeal by the Procurator Fiscal the case came before the High Court of Justiciary.

10In order to decide the case, the High Court of Judiciary referred the following questions to the Court for a preliminary ruling:(1) Do the provisions of Article 7 or Article 40(3) of the EEC Treaty, or any other provision of Community law, prevent a Member State from adopting, with the prior valid approval of the Commission, a measure prohibiting the carriage on a fishing vessel registered in that Member State, while that vessel is within an area of the inshore waters of that Member State adjacent to a part of the coast thereof, of a fishing net of a specified type and construction, the use of which is otherwise not prohibited under Community legislation; and if so, in what circumstances?(2)(a) Is Article 19 of Council Regulation (EEC) No 171/83 valid under Community law?(b) If so, does a measure such as that described in Question 1 properly come within the scope of Article 19?’

11Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the relevant Community legislation, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The validity of Article 19 of Regulation No 171/83

12Mr Marshall argued before the national court that Article 19 of Regulation No 171/83 was invalid in so far as it authorized Member States to take measures under the common fisheries policy conflicting with the fundamental principles of the Treaty. That argument prompted the national court to seek a ruling on the validity of that provision.

13It is sufficient to observe in that regard that, according to the very terms of Article 19 of Regulation No 171/83, national conservation measures laid down pursuant to that provision must be compatible with Community law, which naturally includes the fundamental principles thereof.

14Consequently, Article 19 of Regulation No 171/83 cannot be invalid on the ground that it authorizes the adoption of national measures conflicting with those principles.

15In view of the foregoing, the reply to the national court should be that consideration of the question referred has disclosed no factor of such a kind as to affect the validity of Article 19 of Council Regulation No 171/83.

The scope of Article 19(2) of Council Regulation No 171/83

16The High Court of Justiciary also asks whether a national measure such as the Order comes within the scope of Article 19(2) of Council Regulation No 171/83.

17Such a measure is in the nature of the measures contemplated by Article 19 of Regulation No 171/83. First, it is strictly local, since it applies only to some of the waters of the Member State which adopted it. Secondly, it applies to national fishermen only, since it is directed only at vessels registered in the Member State in question. Lastly, as it is confined to prohibiting the use of a particular type of net it is a technical measure.

18In these circumstances, it should be stated in reply to the national court that a national measure such as the Order comes within the scope of Article 19(2) of Council Regulation No 171/83.

The compatibility of a national measure such as the Order with the fundamental principles of the Treaty

19Before the national court, Mr Marshall further argued that the Order was illegal for a number of reasons. In the first place, he claimed that it discriminated on grounds of nationality inasmuch as it placed British fishermen in a less advantageous position than other Community fishermen. Secondly, the discrimination affected more particularly Scottish fishermen operating from Scottish ports, since, unlike other British fishermen, they could not use the nets in question in waters where their use was authorized. Thirdly, the Order infringed the principle of proportionality, because it prohibited the carriage of the nets when it would have sufficed to prohibit their use. Lastly, it was argued that the Order constituted an interference with the right to the free exercise of a professional activity.

20It was this line of argument which led the national court to ask whether Article 7 or Article 40(3) of the Treaty or the fundamental principles of Community law prevent a Member State from prohibiting the carriage of a particular type of net on all vessels registered in that State while the vessels are sailing in waters adjacent to its coast.

21As far as Article 7 of the Treaty is concerned, it must be observed that that provision does not require the Member States to treat their own nationals equally. Consequently, discrimination between fishermen operating from Scottish ports and other British fishermen cannot constitute an infringement of Article 7. Furthermore, the contested measure cannot be regarded as being contrary to Article 7 on the ground that it puts fishermen operating from Scottish ports in a less advantageous situation than fishermen from other Member States. Those categories of fishermen are not in comparable situations in view of the requirements of salmon conservation.

22As far as Article 40(3) of the Treaty is concerned, it follows from the judgment in Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 23, that the Member States must comply with the principle of equality when they are adopting measures, concerning only their own nationals, pursuant to a Community regulation relating to the organization of the agricultural markets.

23In that connection, it must be observed that the Order affects fishermen operating from Scottish ports more than other British fishermen: the former are precluded even from using monofilament gill nets where their use is authorized, since they may not carry them in the waters surrounding their home port.

24However, such a difference in treatment is capable of constituting discrimination contrary to Article 40(3) of the Treaty only if it is arbitrary, that is to say, lacking sufficient justification and not based on objective criteria.

25In that regard, it must be observed that salmon have to cross the area of the sea to which the Order relates in order to reach the rivers in which they spawn. It is therefore essential for the conservation of the species for a certain proportion of salmon to reach their spawning grounds.

26This means that the use of monofilament gill nets must be prohibited in view of their particular efficiency. In order to ensure the effectiveness of that measure it was objectively justified to prohibit the carriage of that type of net in the area in question. Checks are particularly difficult to carry out in the area of the sea in question in view of the length of the coastline. It therefore does not appear arbitrary that the national authorities opted to prohibit the carriage of such nets rather than to step up checks in order to show that the nets have been used for illegal purposes. In the light of those considerations it also appears that the measure in question is not disproportionate to the objectives pursued.

27Lastly, as regards the question of any interference with the right to exercise a professional activity, it must be borne in mind that, as the Court held in its judgment in Case 234/85 Keller [1986] ECR 2897, paragraph 8, limitations may be placed on the exercise of that right if they are justified by the objectives of general interest pursued by the Community, on condition that the substance of the right is left untouched.

28In this case, the limitations placed on the right to fish are justified by the general interest, since they are intended to ensure the conservation of the species in question. Moreover, they do not affect the substance of the right to fish, since the freedom to fish is maintained provided that authorized nets are used.

29Accordingly, it should be stated in reply to the national court that neither Article 7 or Article 40(3) of the Treaty nor the fundamental principles of Community law prevent a Member State from prohibiting the carriage of a particular type of net on all vessels registered in that State while they are in waters adjacent to its coast.

Costs

30The costs incurred by the United Kingdom, the Commission of the European Communities and the Council 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 proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Fifth Chamber),in reply to the questions submitted to it by the High Court of Justiciary, by interlocutor of 23 November 1988, hereby rules:

(1).Consideration of the question referred has disclosed no factor of such a kind as to affect the validity of Article 19 of Council Regulation (EEC) No 171/83.

(2).A national measure such as the order in question comes within the scope of Article 19(2) of Council Regulation (EEC) No 171/83.

(3).Neither Article 7 or Article 40(3) of the Treaty nor the fundamental principles of Community law prevent a Member State from prohibiting the carriage of a particular type of net on all vessels registered in that State while they are in waters adjacent to its coast.

Delivered in open court in Luxembourg on 13 November 1990.