K. M. v The Director of Public Prosecutions.

• Jurisdiction: European Union
• Date: 11 February 2021
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Sixth Chamber)

11 February 2021 ( *1 )

(Reference for a preliminary ruling – Common fisheries policy – Regulation (EC) No 1224/2009 – Control system for ensuring compliance with the rules of the common fisheries policy – Use on board a fishing vessel of equipment which is capable of automatically grading fish by size – Article 89 – Measures to ensure compliance – Article 90 – Criminal sanctions – Principle of proportionality)

In Case C‑77/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal (Ireland), made by decision of 21 January 2020, received at the Court on 13 February 2020, in criminal proceedings against

K. M.

other party:

Director of Public Prosecutions,

THE COURT (Sixth Chamber),

composed of L. Bay Larsen, President of the Chamber, C. Toader (Rapporteur) and M. Safjan, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– K. M., by E. Sweetman, Barrister-at-Law, D.C. Smyth, Senior Counsel, and D.F. Conway, Solicitor,

– the Director of Public Prosecutions, by H. Kiely and A. Collins, acting as Agents, F. McDonagh, Senior Counsel, and T. Rice, Barrister-at-Law,

– Ireland, by A. Joyce, J. Quaney and M. Browne, acting as Agents, and B. Doherty, Barrister-at-Law,

– the European Commission, by F. Moro, K. Walkerová and A. Dawes, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the principle of proportionality, of 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

EU law

Regulation (EC) No 850/98

3 Article 19a 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’), a provision which is headed ‘Prohibition of highgrading’, states: ‘1. Within Regions 1, 2, 3 and 4 the discarding, during fishing operations, of species subject to quota which can be legally landed shall be prohibited. 2. The provisions referred to in paragraph 1 are without prejudice to the obligations set out in this Regulation or in any other Union legal acts in the field of fisheries.’

4 Article 32 of Regulation No 850/98, headed ‘Restrictions on the use of automatic grading equipment’, provides: ‘1. The carrying or use on board a fishing vessel of equipment which is capable of automatically grading by size or by sex herring or mackerel or horse mackerel shall be prohibited. 2. However, the carrying and use of such equipment shall be permitted provided that: (a) the vessel does not simultaneously carry or use on board either towed gear of mesh size less than 70 millimetres or one or more purse seines or similar fishing gears; or (b) (i) the whole of the catch which may be lawfully retained on board is stored in a frozen state, the graded fish are frozen immediately after grading and no graded fish are returned to the sea except as required by Article 19; and (ii) the equipment is installed and located on the vessel in such a way as to ensure immediate freezing and not to allow the return of marine organisms to the sea. 3. Any vessel authorised to fish in the Baltic, Belts or Sound may carry automatic grading equipment in the Kattegat provided that a special fishing permit has been issued to that effect. The special fishing permit shall define the species, areas, time periods and any other required conditions applicable to the use and carriage on board of the grading equipment.’

Regulation (EC) No 1005/2008

5 Article 3 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), headed ‘Fishing vessels engaged in [illegal, unreported and unregulated] fishing’, provides: ‘1. A fishing vessel shall be presumed to be engaged in [illegal, unreported and unregulated] fishing if it is shown that, contrary to the conservation and management measures applicable in the fishing area concerned, it has: … (e) used prohibited or non-compliant fishing gear; or … 2. The activities set out in paragraph 1 shall be considered as serious infringements in accordance with Article 42 depending on the gravity of the infringement in question which shall be determined by the competent authority of the Member State, taking into account the criteria such as the damage done, its value, the extent of the infringement or its repetition.’

6 Article 42 of Regulation No 1005/2008, headed ‘Serious infringements’, states: ‘1. For the purpose of this Regulation, serious infringement means: (a) the activities considered to constitute [illegal, unreported and unregulated] fishing in accordance with the criteria set out in Article 3; … 2. The serious character of the infringement shall be determined by the competent authority of a Member State taking into account the criteria set out in Article 3(2).’

7 Article 44 of Regulation No 1005/2008, headed ‘Sanctions for serious infringements’, provides: ‘1. 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. 2. The Member States shall impose a maximum sanction of at least five times the value of the fishery products obtained by committing the serious infringement. In case of a repeated serious infringement within a five-year period, the Member States shall impose a maximum sanction of at least eight times the value of the fishery products obtained by committing the serious infringement. In applying these sanctions the Member States shall also take into account the value of the prejudice to the fishing resources and the marine environment concerned. 3. Member States may also, or alternatively, use effective, proportionate and dissuasive criminal sanctions.’

8 Article 45 of Regulation No 1005/2008, headed ‘Accompanying sanctions’, provides in point 3: ‘The sanctions provided for in this Chapter may be accompanied by other sanctions or measures, in particular: … 3. the confiscation of prohibited fishing gear, catches or fishery products; …’

Regulation No 1224/2009

9 Recitals 2, 38 and 39 of Regulation No 1224/2009 are worded as follows: ‘(2) Given that the success of the common fisheries policy involves implementing an effective system of control, the measures provided for in this Regulation seek to establish a Community system for control, inspection, and enforcement with a global and integrated approach in accordance with the principle of proportionality, so as to ensure compliance with all the rules of the common fisheries policy in order to provide for the sustainable exploitation of living aquatic resources by covering all aspects of this policy. … (38) Nationals of Member States should be deterred from committing infringements of the rules of the common fisheries policy. Since action taken following infringements of those rules differs widely from one Member State to another, thereby causing discrimination and unfair competition rules for fishermen and given that the absence of dissuasive, proportionate and effective sanctions in certain Member States reduces the effectiveness of controls, it is appropriate to introduce administrative sanctions in combination with a point system for serious infringements to provide a real deterrent. (39) The persistence of a high number of serious infringements of the rules of the common fisheries policy within Community waters or by Community operators is to a large extent attributable to the non-deterrent level of sanctions for serious infringements of those rules laid down in national legislation. That weakness is compounded by the wide discrepancy in the levels of sanctions between Member States, which encourages illegal operators to operate in waters or within the territory of the Member States where the sanctions...