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Supreme Court of Denmark

Ban on fishing not in contravention of EU law 
05-04-2016 

Case no. 82/2015
 

Judgment delivered on 5 April 2016


The Public Prosecutor
vs.
T1, T2 and T3


Danish Executive Order, which, in accordance with a Danish-Swedish agreement, banned fishing for Danish vessels in an area that also covered Swedish territorial waters, was not in contravention of EU law

T1, T2 and T3 had been found guilty of violation of the ban on fishing in an area in the Kattegat (area 3) laid down in section 5 of Danish Executive Order no. 391 of 16 April 2010, cf. section 10 of the Danish Fisheries Act. The ban had been introduced based on a Danish-Swedish agreement of 26 November 2008 on, among other things, a ban on fishing in this area. According to this agreement, each country is obliged to make the necessary arrangements to implement it, including the introduction of national rules on a ban on fishing for own vessels in the area and enforcement of these rules. The violations had been committed in the summer of 2010 in Swedish territorial waters.

The main issue in the case was whether the ban on fishing in the area in the Executive Order is in contravention of EU law, and thus unenforceable, including because the area in which the fishery had taken place was not under Danish jurisdiction.

The Supreme Court held that the concept of jurisdiction in the Basic Regulation and the Regulation on Technical Measures, laying down member states' possibilities of introducing technical measures for the conservation of fishery resources, must be interpreted in accordance with customary international law, and that Denmark under international law is not precluded from obtaining jurisdiction in areas under Swedish sovereignty. This may be effected by agreement or based on custom, practice or mutual understanding between the countries. 

Based on the information on the agreements between Denmark and Sweden and on their implementation, the Supreme Court also found that Denmark's competence to lay down rules, enforce them and try violations of them in relation to Danish vessels means that Denmark has jurisdiction over the entire area, including the part of the area that is in Swedish territorial waters.

Accordingly, and considering that this measure was covered by the Regulations, that the Danish-Swedish agreement had been duly notified, that the ban was not in contravention of the EU proportionality principle, and that the other conditions in the Basic Regulation and the Regulation on Technical Measures for taking the mentioned measures had been fulfilled, the Supreme Court found that the Danish rules were not in contravention of EU law. Also, there was no doubt as to the interpretation of the provisions that would justify referring questions for a preliminary ruling to the EU Court of Justice.

The Supreme Court did not find that there was basis for changing the confiscation amounts or the penalties.

The High Court had reached the same conclusion.

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