Legal summary

December 2022

Spasov v. Romania - 27122/14

Judgment 6.12.2022 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Conviction based on domestic-law provisions that were manifestly contrary to directly applicable EU Regulations taking precedence over them: violation

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Value confiscation and temporary ban on fishing in the exclusive economic zone, linked to a conviction in breach of EU law: violation

Facts – The applicant, the owner and captain of a vessel registered in Bulgaria, was fishing for turbot in Romania’s exclusive economic zone (EEZ) when his vessel was boarded. He was prosecuted on the grounds that he did not hold a Romanian fishing licence and that he had used nets that were prohibited by the Romanian legislation.

As the facts had occurred after the accession of both countries to the European Union, the applicant relied on the rules of the Common Fisheries Policy. However, in a final judgment of 2 October 2013 the Court of Appeal held that Community vessels were still subject to the provisions of the Romanian legislation enacted on the basis of the United Nations Convention on the Law of the Sea, and that the national rules dealing specifically with turbot fishing were not contrary to EU law.

In addition to a custodial sentence and criminal fines, further penalties were imposed on the applicant in the form of value confiscation and a temporary ban on fishing inside Romania’s EEZ.

The applicant complained that the Court of Appeal had not sought a ruling from the Court of Justice of the European Union (CJEU) as to the interpretation of the rules of the Common Fisheries Policy, and that it had given a decision which in his view was arbitrary in the light of those rules.

Law

Article 6 § 1 (criminal):

Unlike in previous cases in which the Court had examined the obligation for the domestic courts to give reasons for refusing to request a preliminary ruling, the issue at stake in the present case was not a refusal by the Court of Appeal to seek a ruling from the CJEU after receiving a request for an interpretation of EU law from the parties; rather, it was a matter of ascertaining whether the final judgment of that court had resulted from a manifest error of law.

The issue of the application of the rules of EU law to fishing activities inside Romania’s EEZ in the Black Sea was central to the case. The Court of Appeal had provided its own interpretation of those rules and had applied the domestic legislation in the present case. The Court therefore had to determine whether the reasoning of the Court of Appeal judgment in this regard complied with the standards of the Convention.

The rules of the Common Fisheries Policy were set down in a series of Regulations. In the EU legal system, Regulations, unlike Directives, were binding in their entirety and directly applicable in all member States. According to the principle of the primacy of EU law, a Regulation with direct effect took precedence over any conflicting domestic law.

It followed that the provisions of Article 17 of Regulation (EC) No 2371/2002, which provided for equal access to waters and resources in Community waters, were applicable to the applicant’s case. Moreover, the domestic authorities had made no use of the mechanism provided for by Article 8 of that Regulation in order to limit access to those resources.

Furthermore, the European Commission had clearly indicated to the Romanian authorities that the proceedings against the applicant were contrary to EU law, and in particular Regulation (EC) No 2371/2002 and Regulation (EU) No 1256/2010. It had made clear that the national legislation requiring a Romanian fishing licence and providing for a minimum mesh size within Romania’s exclusive economic zone in the Black Sea was contrary to the rules of the Common Fisheries Policy. The Commission’s position, which related specifically to the applicant’s case, had been notified to the Romanian authorities some time before the Court of Appeal had delivered its final judgment.

The failure by the respondent State to comply with its obligations under the Common Fisheries Policy had also been the subject of infringement proceedings in relation to the incident involving the applicant and other similar incidents. Those proceedings had been pending when the Court of Appeal had adopted its final judgment, and the Commission had only closed the proceedings once Romania had amended its domestic legislation and the rules on access to the waters and resources of the Black Sea coming within its jurisdiction in order to bring them into line with European law.

In the light of the provisions of Regulation (EC) No 2371/2002 and the very clear opinion of the Commission concerning the application of the Common Fisheries Policy rules, the Court held that, in convicting the applicant notwithstanding the Commission’s view that the proceedings against him were in breach of those rules, the Court of Appeal had committed a manifest error of law. In the event of doubt the Court of Appeal could have requested a ruling from the CJEU as to the interpretation of the rules in question.

The foregoing considerations were sufficient for the Court to find that the applicant had been the victim of a “denial of justice”.

Conclusion : violation (unanimously).

Article 1 of Protocol No. 1:

(i) Applicability – The applicant held a Bulgarian fishing licence which entitled him to fish in Community waters, which included Romania’s EEZ. As fishing in those waters in the Black Sea had been part of the normal operation of the applicant’s business, the temporary ban on fishing there had deprived his licence of part of its substance, even though it remained valid. That ban amounted to interference with the applicant’s right to the peaceful enjoyment of his possessions, and more specifically the economic interests linked to his fishing activity within Romania’s EEZ in the Black Sea.

Conclusion : Article 1 of Protocol No. 1 applicable.

(ii) Merits – The pecuniary penalties imposed on the applicant by the Court of Appeal had been based on Government Emergency Ordinance no. 23/2008 and had been imposed in addition to his conviction for illegal fishing. However, the Court had just found that the applicant’s conviction had been the result of a manifest error of law. Accordingly, the above-mentioned provisions could not serve as a legal basis for the additional pecuniary penalties imposed on the applicant.

Conclusion : violation (unanimously).

Article 41: EUR 6,500 for pecuniary and non-pecuniary damage.

(As regards the distinction between Regulations and Directives, see also Avotiņš v. Latvia [GC], 17502/07, 23 May 2016, Legal summary ; regarding the direct effect and primacy of Regulations, see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], 45036/98, 30 June 2005, Legal summary ; as to the deprivation of the substance of a permit or licence, see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], 38433/09, 7 June 2012, Legal summary ; regarding interference with the economic interests linked to a business, see O’Sullivan McCarthy Mussel Development Ltd v. Ireland , 44460/16, 7 June 2018, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

To access legal summaries in English or French click here . For non-official translations into other languages click here .