1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 9 APRIL 1984 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY NOT LEVYING CUSTOMS DUTIES ON THE PRODUCTS RESULTING FROM JOINT FISHING OPERATIONS IN THE CIRCUMSTANCES SET OUT BELOW THE UNITED KINGDOM HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 4 ( 2 ) ( F ) OF REGULATION ( EEC ) NO 802/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON DEFINITION OF THE CONCEPT OF THE ORIGIN OF GOODS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 165 ) AND UNDER REGULATION ( EEC ) NO 950/68 OF THE COUNCIL OF 28 JUNE 1968 ON THE COMMON CUSTOMS TARIFF ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 275 ), AS AMENDED AT THE MATERIAL TIME BY REGULATION ( EEC ) NO 3000/79 ( OFFICIAL JOURNAL 1979 , L 342 , P . 1 ).
2 DURING 1979 AND 1980 THE FISHING INDUSTRY IN THE COMMUNITY WAS IN DIFFICULTIES OWING TO DECLINING CATCHES , IN PARTICULAR OF COD , AND OVERCAPACITY IN TERMS OF FISHING VESSELS . IT WAS AGAINST THE BACKGROUND OF THAT SITUATION THAT BRITISH TRAWLERS SAILED TO A FISHING ZONE IN THE BALTIC SEA OVER WHICH POLAND CLAIMS EXCLUSIVE RIGHTS . IN THE ABSENCE OF AN AGREEMENT BETWEEN THE EEC AND POLAND PERMITTING COMMUNITY VESSELS TO FISH IN THOSE WATERS PARTICIPATION IN JOINT FISHING OPERATIONS WITH POLISH VESSELS SEEMED TO BE THE MEANS OF ENABLING COMMUNITY VESSELS TO GAIN ACCESS TO THEM . THE POLISH VESSELS WERE SUPPLIED WITH QUANTITIES OF FISH BY WAY OF RECOMPENSE IN KIND .
3 IT IS COMMON GROUND THAT THE JOINT FISHING OPERATIONS IN QUESTION TOOK PLACE UNDER THE FOLLOWING CIRCUMSTANCES : IN THE SPRING OF 1980 , IN INTERNATIONAL WATERS IN THE BALTIC SEA SOME 40 TO 80 MILES OFF THE POLISH COAST , BRITISH TRAWLERS CAST EMPTY NETS INTO THE SEA WHICH WERE TAKEN OVER BY POLISH TRAWLERS . THE POLISH TRAWLERS TRAWLED THE NETS WITHOUT AT ANY TIME TAKING THEM ON BOARD OR ENTERING TERRITORIAL WATERS . WHEN THE TRAWL WAS COMPLETED , THE BRITISH TRAWLERS DREW ALONGSIDE THE POLISH VESSELS AND LIFTED THE NETS , THE ENDS OF WHICH WERE PASSED TO THEM BY THE POLISH VESSELS . THE CONTENTS OF THE NETS WERE TAKEN ON BOARD THE BRITISH TRAWLERS , WHICH THEN TOOK THE FISH TO THE UNITED KINGDOM .
4 THE LOCAL UNITED KINGDOM CUSTOMS OFFICER CONSIDERED INITIALLY THAT THE FISH THUS BROUGHT IN WERE OF POLISH ORIGIN AND SUBSEQUENTLY REQUIRED SECURITY TO BE FURNISHED AGAINST ANY IMPORT DUTY THAT MIGHT BE PAYABLE . HER MAJESTY ' S CUSTOMS AND EXCISE DECIDED , ON APPEAL , ON THE BASIS OF THE RULES SET OUT IN REGULATION NO 802/68 OF 27 JUNE 1968 OF THE COUNCIL ON THE COMMON DEFINITION OF THE CONCEPT OF THE ORIGIN OF GOODS , THAT THE FISH WERE OF COMMUNITY ORIGIN AND THUS ENTITLED TO DUTY-FREE ADMISSION .
5 ON BEING INFORMED OF THOSE EVENTS THROUGH WRITTEN QUESTIONS FROM MEMBERS OF THE EUROPEAN PARLIAMENT , THE COMMISSION ADOPTED A POINT OF VIEW WHICH WAS THE REVERSE OF THAT OF THE UNITED KINGDOM . AFTER AN INITIAL , UNFRUITFUL , EXCHANGE OF VIEWS , THE COMMISSION SENT TO THE UNITED KINGDOM GOVERNMENT ON 13 AUGUST 1982 A LETTER FORMALLY INVITING IT TO SUBMIT ITS OBSERVATIONS . IN VIEW OF THE TERMS OF THE UNITED KINGDOM ' S REPLY OF 18 OCTOBER 1982 , IT ISSUED A REASONED OPINION ON 10 OCTOBER 1983 REQUESTING THE UNITED KINGDOM GOVERNMENT TO TAKE THE MEASURES NECESSARY TO COMPLY THEREWITH AND IN PARTICULAR TO EFFECT POST-CLEARANCE RECOVERY OF THE IMPORT DUTIES PAYABLE , WITHIN ONE MONTH OF THE OPINION ' S BEING SERVED .
6 SINCE THE UNITED KINGDOM TOOK NO MEASURES TO COMPLY WITH THE REASONED OPINION , THE COMMISSION BROUGHT THE PRESENT ACTION .
7 ARTICLE 4 OF THE AFOREMENTIONED REGULATION NO 802/68 OF THE COUNCIL OF 27 JUNE 1968 PROVIDES AS FOLLOWS :
' ( 1 ) GOODS WHOLLY OBTAINED OR PRODUCED IN ONE COUNTRY SHALL BE CONSIDERED AS ORIGINATING IN THAT COUNTRY .
( 2)THE EXPRESSION ' ' GOODS WHOLLY OBTAINED OR PRODUCED IN ONE COUNTRY ' ' MEANS :
. . .
( E ) PRODUCTS OF HUNTING OR FISHING CARRIED ON THEREIN ,
( F)PRODUCTS OF SEA-FISHING AND OTHER PRODUCTS TAKEN FROM THE SEA BY VESSELS REGISTERED OR RECORDED IN THAT COUNTRY AND FLYING ITS FLAG . '
8 ARTICLE 5 OF THE SAME REGULATION PROVIDES :
' A PRODUCT IN THE PRODUCTION OF WHICH TWO OR MORE COUNTRIES WERE CONCERNED SHALL BE REGARDED AS ORIGINATING IN THE COUNTRY IN WHICH THE LAST SUBSTANTIAL PROCESS OR OPERATION THAT IS ECONOMICALLY JUSTIFIED WAS PERFORMED , HAVING BEEN CARRIED OUT IN AN UNDERTAKING EQUIPPED FOR THE PURPOSE , AND RESULTING IN THE MANUFACTURE OF A NEW PRODUCT OR REPRESENTING AN IMPORTANT STAGE OF MANUFACTURE . '
9 ON THE BASIS OF A LITERAL INTERPRETATION OF ARTICLE 4 ( 2 ) ( F ) OF REGULATION NO 802/68 , THE COMMISSION TAKES THE VIEW THAT THE PHRASE AT ISSUE , ' TAKEN FROM THE SEA ' ( ' EXTRAITS DE LA MER ' ), MUST BE INTERPRETED AS SIGNIFYING NOT ONLY THE ACT OF TAKING OUT OF THE SEA BUT THE ACT OF SEPARATING A SUBSTANCE FROM THE WHOLE OF WHICH IT IS A PART . IN THE CASE OF FISHING THIS CANNOT MEAN ANYTHING OTHER THAN THE ACT OF CATCHING FISH IN THE NET AND SO SEPARATING THEM FROM THE SEA WHERE THEY LIVED BEFORE BEING CAUGHT . IN THE COMMISSION ' S OPINION THAT IS THE MOST SIGNIFICANT OPERATION IN FISHING AND IT WAS CARRIED OUT WHOLLY BY POLISH VESSELS . THE COMMISSION CONTENDS THAT ANALYSIS OF THE VERSIONS OF THE PROVISION AT ISSUE IN THE OTHER COMMUNITY LANGUAGES BEARS OUT THAT INTERPRETATION .
10 THE COMMISSION ALSO BASES ITS CASE ON AN INTERPRETATION OF THE DISPUTED PROVISION CONSIDERED IN ITS CONTEXT AND , IN PARTICULAR , ON A COMPARISON OF SUBPARAGRAPH ( F ) WITH SUBPARAGRAPH ( E ) OF ARTICLE 4 ( 2 ) OF REGULATION NO 802/68 . IT EMERGES FROM SUCH AN INTERPRETATION , ACCORDING TO THE COMMISSION , THAT WHERE FISHING IS UNDERTAKEN OUTSIDE TERRITORIAL WATERS IT IS ALSO NECESSARY , FOR COMMERCIAL AND CUSTOMS PURPOSES , TO TAKE ACCOUNT OF THE FLAG FLOWN BY THE FISHING VESSELS IN ORDER TO DETERMINE THE ORIGIN OF THE PRODUCTS TAKEN OUT OF THE SEA . CONSEQUENTLY , THE COMMISSION CLAIMS THAT FISH CAUGHT IN THE CIRCUMSTANCES OF THE PRESENT CASE ARE POLISH IN ORIGIN . MOREOVER , JOINT FISHING OPERATIONS OF THE TYPE IN QUESTION WERE NOT CONTEMPLATED BY REGULATION NO 802/68 , SINCE THE COMMUNITY LEGISLATURE ENVISAGED THAT THE VESSEL ' TAKING ' THE FISH FROM THE SEA WOULD BE THE VESSEL WHICH ' CATCHES ' THEM .
11 CONVERSELY , THE UNITED KINGDOM CONTENDS , ALSO ON THE BASIS OF A LITERAL INTERPRETATION OF THE PROVISION AT ISSUE , ARTICLE 4 ( 2 ) ( F ), THAT ONLY WHEN THE NETS CONTAINING THE FISH ARE RAISED OUT OF THE WATER AND SWUNG ON BOARD SHIP CAN THE FISH BE SAID TO HAVE BECOME ' PRODUCTS OF SEA-FISHING OR OTHER PRODUCTS TAKEN FROM THE SEA ' WITHIN THE MEANING OF REGULATION NO 802/68 . IN THE UNITED KINGDOM ' S VIEW , THE DECISIVE OPERATION IS THE ACTUAL LANDING OF THE FISH ON DECK , SINCE BEFORE THAT OCCURS IT IS NOT CERTAIN THAT THE FISH , ALTHOUGH NETTED , WILL BE TAKEN ON BOARD . THE UNITED KINGDOM FURTHER CONTENDS THAT ANALYSIS OF THE VARIOUS LANGUAGE VERSIONS OF THE DISPUTED EXPRESSION ' TAKEN FROM THE SEA ' ( ' EXTRAITS DE LA MER ' ) SHOWS THAT THE DRAFTERS OF THE REGULATION USED GENERAL TERMS AND DID NOT REFER TO THE CONCEPT OF CATCHING .
12 RELYING ALSO UPON THE INTERPRETATION OF THE EXPRESSION IN QUESTION IN THE LIGHT OF REGULATION NO 802/68 AS A WHOLE , THE UNITED KINGDOM ARGUES THAT , ALTHOUGH TRAWLING FOR FISH IS IN FACT AN IMPORTANT OPERATION IN THE CATCHING OF FISH , THE NETTING OF FISH WITHOUT EVEN REMOVING THE NET FROM THE WATER DOES NOT CONSTITUTE A ' SUBSTANTIAL PROCESS OR OPERATION THAT WAS ECONOMICALLY JUSTIFIED ' WITHIN THE MEANING OF THE SEVENTH RECITAL IN THE PREAMBLE TO REGULATION NO 802/68 . MOREOVER , THE INTERPRETATION PROPOSED BY THE COMMISSION IS INAPPLICABLE TO FISHERY PRODUCTS OTHER THAN FISH . IT THEREFORE MAINTAINS THAT THE TERMS ' TAKING OUT OF THE SEA ' ( ' TIRER HORS DE LA MER ' ) ARE THE ONLY ONES WHICH CAN BE APPLIED TO ALL THE PRODUCTS COVERED BY ARTICLE 4 ( 2 ) ( F ) OF THE REGULATION .
13 FINALLY , THE UNITED KINGDOM CONTENDS THAT REGULATION NO 802/68 MUST BE INTERPRETED IN THE LIGHT OF OTHER COMMUNITY REGULATIONS DEALING WITH THE ORIGIN OF GOODS , SO AS TO PRODUCE CONSISTENCY BETWEEN THEM . IT REFERS IN PARTICULAR TO COUNCIL REGULATION ( EEC ) NO 3225/80 OF 25 NOVEMBER 1980 ON THE CONCLUSION OF THE SECOND ACP-EEC CONVENTION SIGNED AT LOME ON 31 OCTOBER 1979 ( OFFICIAL JOURNAL 1980 , L 347 , P . 1 ), TO THE VARIOUS COMMUNITY REGULATIONS ON THE CONCLUSION OF THE AGREEMENTS BETWEEN THE EUROPEAN ECONOMIC COMMUNITY , ON THE ONE HAND , AND THE PORTUGUESE REPUBLIC , THE STATE OF ISRAEL AND THE ARAB REPUBLIC OF EGYPT , ON THE OTHER , AND TO COMMISSION REGULATION ( EEC ) NO 3749/83 OF 23 DECEMBER 1983 ON THE DEFINITION OF THE CONCEPT OF ORIGINATING PRODUCTS FOR PURPOSES OF THE APPLICATION OF TARIFF PREFERENCES GRANTED BY THE EUROPEAN ECONOMIC COMMUNITY IN RESPECT OF CERTAIN PRODUCTS FROM DEVELOPING COUNTRIES ( OFFICIAL JOURNAL 1983 , L 373 , P . 1 ). IT MAINTAINS THAT IT IS CLEAR FROM THOSE REGULATIONS THAT THE EXPRESSION ' TIRES DE LA MER ' USED IN THE FRENCH VERSIONS THEREOF IS MUCH CLOSER TO THE ENGLISH VERSION OF REGULATION NO 802/68 AND IS PERSUASIVE AS TO THE INTERPRETATION TO BE PLACED ON THE FRENCH VERSION OF THE DISPUTED PROVISION OF THAT REGULATION .
14 IT MUST BE OBSERVED IN THE FIRST PLACE THAT , IN THE ABSENCE OF ANY PROCESSING , AS IN THIS CASE , THE ORIGIN OF FISH WHICH ARE PRODUCTS OF SEA-FISHING MUST BE DETERMINED SOLELY IN THE LIGHT OF ARTICLE 4 ( 2 ) ( F ), QUOTED ABOVE , OF REGULATION NO 802/68 AND NOT OF ARTICLE 5 THEREOF , TO WHICH THE SEVENTH RECITAL IN THE PREAMBLE TO THE REGULATION REFERS .
15 SECONDLY , IT SHOULD BE NOTED THAT THE PHRASE ' EXTRAITS DE LA MER ' OR ITS EQUIVALENT IS EMPLOYED IN THE GREEK , FRENCH , ITALIAN AND DUTCH VERSIONS OF REGULATION NO 802/68 AND IS CAPABLE OF MEANING BOTH ' TAKEN OUT OF THE SEA ' AND ' SEPARATED FROM THE SEA ' . EVEN ALLOWING THAT THE ENGLISH VERSION , WHICH USES THE PHRASE ' TAKEN FROM THE SEA ' , HAS THE SIGNIFICANCE ATTRIBUTED TO IT BY THE UNITED KINGDOM ( ' COMPLETE REMOVAL FROM THE WATER ' ), THE GERMAN VERSION OF THE REGULATION EMPLOYS THE TERM ' GEFANGEN ' , MEANING ' CAUGHT ' , AS THE UNITED KINGDOM ITSELF ACKNOWLEDGES , CLAIMING THAT ' IT SEEMS . . . TO BE AN INAPPROPRIATE TERM TO USE ' .
16 ACCORDINGLY , A COMPARATIVE EXAMINATION OF THE VARIOUS LANGUAGE VERSIONS OF THE REGULATION DOES NOT ENABLE A CONCLUSION TO BE REACHED IN FAVOUR OF ANY OF THE ARGUMENTS PUT FORWARD AND SO NO LEGAL CONSEQUENCES CAN BE BASED ON THE TERMINOLOGY USED .
17 CONSEQUENTLY , AS THE COURT HAS HELD ON NUMEROUS OCCASIONS , IN PARTICULAR IN ITS JUDGMENT OF 27 OCTOBER 1977 IN CASE 30/77 ( REGINA V PIERRE BOUCHEREAU ( 1977 ) ECR 1999 ), IN THE CASE OF DIVERGENCE BETWEEN THE LANGUAGE VERSIONS THE PROVISION IN QUESTION MUST BE INTERPRETED BY REFERENCE TO THE PURPOSE AND GENERAL SCHEME OF THE RULES OF WHICH IT FORMS A PART .
18 IT IS APPROPRIATE TO OBSERVE IN THIS CONNECTION THAT , AS THE COMMISSION RIGHTLY MAINTAINS , ARTICLE 4 OF REGULATION NO 802/68 HAS THE AIM OF DETERMINING THE ORIGIN OF GOODS OR PRODUCTS WHOLLY OBTAINED IN ONE COUNTRY ONLY AND ONLY CONTEMPLATES THE NORMAL CASE IN WHICH A FISHING OPERATION IS UNDERTAKEN BY VESSELS FLYING THE SAME FLAG . THEREFORE THE INTENTION OF THE COMMUNITY LEGISLATURE , AS EMERGES FROM THE VERY TERMS EMPLOYED BY IT , WAS SIMPLY THAT THE ORIGIN OF THE FISH SHOULD BE DETERMINED ON THE BASIS OF THE FLAG OR REGISTRATION OF THE VESSEL WHICH CATCHES THEM .
19 HOWEVER , IN THE EXCEPTIONAL CASE IN WHICH A NUMBER OF VESSELS FLYING DIFFERENT FLAGS OR REGISTERED IN DIFFERENT COUNTRIES COOPERATE IN A JOINT FISHING OPERATION , IT SHOULD BE HELD , FOR THE PURPOSES OF APPLYING THE PROVISIONS IN QUESTION , THAT THE ORIGIN OF THE FISH MUST BE MADE TO DEPEND ON THE FLAG FLOWN BY THE VESSEL WHICH PERFORMED THE ESSENTIAL PART OF THE OPERATION OF CATCHING THEM . IN THAT CONNECTION , IT APPEARS CONSONANT WITH ACTUAL FACT TO TAKE THE VIEW THAT THE VESSEL THAT LOCATES THE FISH AND SEPARATES THEM FROM THE SEA BY NETTING THEM PERFORMS THE ESSENTIAL PART OF THAT OPERATION .
20 FROM THAT POINT OF VIEW THE UNITED KINGDOM ' S ARGUMENT TO THE EFFECT THAT THE MERE NETTING OF FISH DOES NOT AMOUNT TO CATCHING THEM DEFINITIVELY , OWING TO THE RISK OF THE NETS BREAKING AND THE FISH BEING LOST , CANNOT BE UPHELD AS THAT RISK IS ONLY OF AN EXCEPTIONAL CHARACTER .
21 IT FOLLOWS FROM THE FOREGOING THAT FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 4 ( 2 ) ( F ) OF REGULATION NO 802/68 IN THE CASE OF A JOINT FISHING OPERATION THE ORIGIN OF THE FISH MUST BE DETERMINED BY REFERENCE NOT TO THE FLAG FLOWN BY THE VESSEL WHICH MERELY RAISES THE NETS OUT OF THE WATER BUT TO THE FLAG FLOWN BY THE VESSEL WHICH CARRIES OUT THE ESSENTIAL PART OF THE OPERATION OF CATCHING FISH , THAT IS TO SAY , IN PARTICULAR , THE LOCATION OF THE FISH AND NETTING THEM SO THAT THEY CAN NO LONGER MOVE FREELY IN THE SEA .
22 ON THOSE GROUNDS IT MUST BE HELD THAT , BY NOT LEVYING CUSTOMS DUTIES ON THE IMPORTATION INTO ITS TERRITORY OF FISH CAUGHT DURING JOINT FISHING OPERATIONS IN WHICH VESSELS FLYING THE BRITISH FLAG TOOK PART TOGETHER WITH VESSELS FLYING THE FLAG OF A NON-MEMBER COUNTRY , THE LATTER HAVING PERFORMED THE ESSENTIAL PART OF THE OPERATION OF CATCHING THE FISH AND THE FORMER HAVING MERELY RAISED THE NETS OUT OF THE WATER , THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 4 ( 2 ) ( F ) OF REGULATION ( EEC ) NO 802/68 OF THE COUNCIL ON THE COMMON DEFINITION OF THE ORIGIN OF GOODS AND UNDER REGULATION ( EEC ) NO 950/68 OF THE COUNCIL ON THE COMMON CUSTOMS TARIFF , AS AMENDED BY REGULATION NO 3000/79 .
COSTS
23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS ,
THE COURT
HEREBY :
( 1 ) DECLARES THAT BY NOT LEVYING CUSTOMS DUTIES ON THE IMPORTATION INTO ITS TERRITORY OF FISH CAUGHT DURING JOINT FISHING OPERATIONS IN WHICH VESSELS FLYING THE BRITISH FLAG TOOK PART TOGETHER WITH VESSELS FLYING THE FLAG OF A NON-MEMBER COUNTRY , THE LATTER HAVING PERFORMED THE ESSENTIAL PART OF THE OPERATION OF CATCHING THE FISH AND THE FORMER HAVING MERELY RAISED THE NETS OUT OF THE WATER , THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 4 ( 2 ) ( F ) OF REGULATION ( EEC ) NO 802/68 OF THE COUNCIL ON THE COMMON DEFINITION OF THE ORIGIN OF GOODS AND UNDER REGULATION ( EEC ) NO 950/68 OF THE COUNCIL ON THE COMMON CUSTOMS TARIFF , AS AMENDED BY REGULATION NO 3000/79 ;
( 2)ORDERS THE UNITED KINGDOM TO PAY THE COSTS .
