European Court of Human Rights Spasov v. Romania – app. nr. 27122/14, Judgment 06.12.2022, Section IV.

Member State
Romania
Topic
mutual trust, accountability, rule of law
Sector
Judicial Interaction Techniques; Use of the Preliminary Reference Procedure; Predictive Justice
Deciding Court Original Language
Curtea Europeană a Drepturilor Omului
Deciding Court English translation
European Court of Human Rights
Registration N
27122/14
Date Decision
06.12.2022, final on 06/03.2023
ECLI (if available)
ECLI:CE:ECHR:2022:1206JUD002712214
National Follow Up Of (when relevant)
The decision of the ECHR is executed by the Romanian state. (Resolution CM/ResDH(2024)102 adopted by the Committee of Ministers on 13 June 2024.
EU legal sources and CJEU jurisprudence

Art. 17 (1) of (EC) Regulation no. 2371/2002, (EU) Regulation no. 1256/2010 of the Council of 17 December 2010 establishing, for 2011, the fishing possibilities for certain fishing resources applicable in the Black Sea. Within the total allowable catch (TAC), Romania and Bulgaria could each fish 43.2 tonnes of turbot.
(EU) Regulation no. 227/2013 of the European Parliament and of the Council of 13 March 2013 establishing a minimum mesh size for turbot fishing in the Black Sea 
Art. 267 in the Treaty for the Functioning of the European Union (TFUE)

Costa against E.N.E.L. (decision on July 15th,1964, 6/64, Jurisprudence Manual 1141)
Van Gend and Loos (decision on February 5th, 1963, 26/62, Manual 3)

ECtHR Jurisprudence
Sanofi Pasteur against France, nr. 25137/16, pct. 69, February 13th, 2020
Avotiņš against Latvia (MC), nr. 17502/07, pct. 106, May 23rd, 2016
Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi against Ireland (MC), nr. 45036/98, pct. 92, CEDO 2005 VI
Subject Matter

Disapplication of national law in favour of EU law.

The case concerns the criminal conviction of the applicant, a Bulgarian national and captain of a fishing vessel in the Black Sea waters, in 2013 for fishing in Romania`s exclusive economic zone and for the use of prohibited fishing gear.
As regards the criminal penalties, the European Court found that the Court of Appeal had committed a manifest error of law by sentencing the applicant even though the European Commission had informed the Romanian authorities that the procedures against him were contrary to European law.
As concerns the complementary pecuniary penalties applied (the confiscation of part of the value of the vessel and the prohibition of fishing), the European Court found that the provisions of national law invoked by the Court of Appeal could not serve as basis for imposing such penalties, as long as  European law authorized the fishing in the exclusive economic zone of Romania

Legal issue(s)
Denial of justice by not applying EU law
Violations of Articles 6, paragraph 1 and 1 of Protocol No. 1.
Request for expedited/PPU procedures
The Bulgarian authorities referred the incident involving the applicant to the European Commission ("the Commission"), which requested an explanation from the Romanian authorities.
On December 21, 2011, the Directorate-General for Maritime Affairs and Fisheries of the European Commission (DG MARE) sent a letter to the Romanian authorities informing them that serious errors were committed in the interpretation and application of the rules of the common policy in the field of fishing, especially (EC) Regulation no. 2.371/2002 and (EU) Regulation no. 1.256/2010. 
In particular, it was considered that the seizure of the applicant's vessel, on the grounds that he did not hold a fishing license issued by the Romanian authorities, was contrary to these rules. The prosecution for the use of fishing nets that do not comply with Romanian legislation was contrary to EU law and that Union law did not provide for common technical standards for turbot fishing gear in the Black Sea. The Romanian authorities could only regulate the mesh size of turbot fishing nets in territorial waters located less than 12 nautical miles from the edge of their shore.
DG MARE urged the Romanian authorities to remedy the situation. It recalled that only EU bodies have the exclusive competence to adopt measures for the conservation of fisheries/fishing resources in the Black Sea, within the framework of the common fishing policy, and that national authorities cannot legislate in this area without their consent. 
The complainant notified the Petitions Committee of the European Parliament. He sent a request for information to the Commission, which responded on February 28, 2015:„.... In the case of the applicant, the first instance court in Romania correctly interpreted the relevant provisions of EU law on free access. However [...] following the appeal submitted by the prosecutor's office, the court of appeal overturned this decision in October 2013 and sentenced the person in question to a particularly severe punishment. [...] It seems that the said appeal court did not take into account the position of the Commission regarding the interpretation of the provisions of EU law applicable in the present case (the position of the Commission had been submitted to the file of the procedure) and did not ask the CJEU the preliminary questions that could have removed any doubts regarding the correct interpretation of the EU law. Taking these elements into account and considering that this case concerns fundamental principles of the EU, the Commission is currently considering whether to continue the infringement procedure by sending a formal letter of formal notice. ”
In a letter dated March 13, 2012, addressed to a Bulgarian association acting on behalf of the applicant, DG MARE confirmed that fishing vessels sailing under the Bulgarian flag and holding a fishing license issued by the Bulgarian authorities were entitled to fish in the exclusive economic zone of Romania in the Black Sea.
On May 10, 2012, considering the position of the Commission, the prosecutor's office requested the Mangalia Court to address to the Court of Justice of the European Union ("CJEU") a preliminary question regarding the interpretation and application of the rules of the common policy in the field of fisheries. He wanted the CJEU to be asked to specify whether these rules prevented the Romanian authorities from adopting rules to regulate fishing in Romania's exclusive economic zone in the Black Sea themselves. The applicant joined this application. On October 11, 2012, the Mangalia court rejected the request, considering that the questions concerned the merits of the litigation and not Union law, there being, in its opinion, no doubts regarding its interpretation or application in the case. The court applied the EU Regulation and acquitted the plaintiff. The Prosecutor's Office declared an appeal that was judged by the Constanta Court of Appeal and which completely changed the Court's decision.  
On April 25, 2013, the Commission initiated the procedure against Romania upon finding a non-fulfilment of obligations, pursuant to art. 258 of the Treaty on the Functioning of the European Union (procedure no. 20132043), following the incident in which the applicant was involved and other similar incidents. It addressed a letter of formal notice to the Romanian authorities, informing them that they had the obligation to respect the principle of equal access to the waters and resources of the EU in the Black Sea.
On June 18, 2015, the Commission sent an additional letter of formal notice to the Romanian authorities, in the framework of the procedure for ascertaining the non-fulfilment of obligations.
On February 15, 2017, it issued a reasoned opinion in which it blamed Romania for not ensuring equal access to EU waters and resources in the Black Sea for ships under the Bulgarian flag and urged the Romanian authorities to remedy this situation.
By an order dated March 28, 2017, the Ministry of Agriculture and Rural Development expressly authorized the access to the waters and resources of the Black Sea, under the jurisdiction of Romania, of all fishing vessels operating under the flag of a member state and holding a fishing license issued by a Member State.
On January 25, 2018, taking into account this change in the national legal framework, the Commission concluded the infringement procedure.
Interim Relief
N/A
National Law Sources
Art. 64 let. (a), (i) and (k) and of art. 65 para. (1) let. (b) from GEO no. 23/2008 on fishing and aquaculture, namely fishing without a license, fishing with gear with mesh below the legal minimum size, the use of commercial fishing gear by unauthorized persons and fishing with prohibited gear and tools.
Facts of the case
The plaintiff is a Bulgarian citizen and the owner of a fishing vessel. On April 13, 2011, he was fishing in the exclusive economic zone of Romania and was stopped for a check by the Romanian border police. The ship was driven to the Mangalia Port and was detained and the quantity of fish was confiscated. The plaintiff was placed under preventive arrest, being released shortly after with the obligation not to leave Romania during the investigation. On May 15, 2011, he was allowed to return to Bulgaria and the ship was returned to him.
The criminal prosecution started for illegal fishing, without a license and the use of non-compliant fishing tools, in the exclusive economic zone of Romania. The Bulgarian citizen defended himself by presenting the fishing license issued in Bulgaria and argued that he had the right to fish in the exclusive area of Romania a certain amount of turbot that was part of the catch quota allocated to Bulgaria within the common policy of the EU. 
By the indictment he was sent to trial before the Mangalia Court for violating art. 64 let. (a), (i) and (k) and of art. 65 para. (1) let. (b) from GEO no. 23/2008 on fishing and aquaculture.
By the criminal sentence of October 18, 2011, the court acquitted the applicant. It found that he had all the documents required by EU legislation for turbot fishing in Romania's exclusive economic zone in the Black Sea. It decided that, under the rules of the common fishing policy and, in particular, of art. 17 para. (1) from (EC) Regulation no. 2371/2002, the applicant did not need a Romanian fishing license to practice this type of fishing.
The prosecutor's office and the applicant submitted an appeal. By the decision of December 21, 2011, the Constanța Court of Appeal admitted the appeal submitted by the prosecutor's office and sent the case for retrial to the Mangalia Court for it to issue a reasoned decision regarding the legal regime applicable to fishing activities in Romania's exclusive economic zone in the Black Sea.
Through the criminal sentence of February 12, 2013, the court decided that the legal regime applicable to fishing activities in Romania's exclusive economic zone in the Black Sea was that of the EU's common fishing policy. It found that art. 17 para. (1) from (EC) Regulation no. 2371/2002 expressly regulated the principle of free access to Member States' fishing zones for any Community vessel holding a fishing license. The court held that Union law prevails over national legislation and concluded that the applicant was not guilty of illegal fishing. 
The prosecutor's office appealed, requesting the conviction of the applicant for illegal fishing and the confiscation of the equivalent value. The applicant requested the confirmation of his acquittal, reiterating the fact that the Romanian authorities could not prosecute him for the crime of illegal fishing, as he had complied with the rules of the common fishing policy. By a final decision of October 2, 2013, the Constanța Court of Appeal overturned the decision issued in the first instance.
The Court of Appeal ruled that the applicable rules in this area were the United Nations Convention on the Law of the Sea and national legislation adopted under that Convention. It considered that national legislation had established sovereign rights over Romania's exclusive economic zone in the Black Sea and concluded that Bulgarian-flagged vessels operating in this area were under Romania's jurisdiction and therefore obliged to obey its legislation.
The Court of Appeal held that in accordance with the provisions of art. 17 of (EC) Regulation no. 2371/2002, fishing vessels flying the flag of a Member State enjoyed equal access to EU marine resources, but the right to fish there was neither free nor unlimited. It emphasized that art. 8 of this regulation allowed member states to adopt emergency measures if there was evidence of a serious and unforeseen threat to the conservation of living aquatic resources or the marine ecosystem arising as a result of fishing activities in waters under their sovereignty or jurisdiction.
The Court of Appeal found the applicant guilty of illegal fishing, sentenced him to a one-year prison sentence with time served for violating art. 65 para. (1) letter (b) of GEO no. 23/2008. It also imposed three criminal fines in the amount of 6,000 RON (approximately 1,350 EUR), a total of 18,000 RON, for violating art. 64 letters (a) and (k) of the same ordinance. It also ordered, as complementary sanctions, the confiscation of the equivalent value of the vessel, namely the sum of 10,000 RON (approximately 2,250 EUR) and the prohibition of the right to fish in Romania's exclusive economic zone in the Black Sea for a period of one year.
Reasoning (role of the Charter or other EU, ECHR related legal basis)
The Court starts the analysis regarding art. 6 paragraph 1 of the ECHR, from the principle that the Convention does not guarantee, as such, the right for a case to be sent with a preliminary title by the domestic court before the CJEU.
It is the competence of national authorities, in particular the courts, to interpret and apply domestic law in accordance with European Union law.
The plaintiff complained to the ECHR that the authorities did not notify the CJEU in order to issue a preliminary ruling regarding the interpretation of the rules of the common policy in the field of fisheries.
The Court held that in this case it is not about the refusal of the Constanța Court of Appeal to refer the CJEU with a request for the interpretation of Union law, which would have been formulated before it by the parties, but about establishing whether the final decision of October 2, 2013, was the result of a clear error of law.
The Court found that at the center of the litigation was the issue of applying the rules of Union law in the case of fishing activities carried out in the exclusive economic zone of Romania in the Black Sea, and the Court of Appeal proceeded with its own interpretation of these rules and applied in the case the national legislation regarding fishing.
The Court held that the rules of the common fishing policy are defined in a series of regulations which are binding in all their elements and directly applicable in the Member States.
He recalled that in its jurisprudence a regulation is, unlike a directive, binding in all its elements and directly applicable in all member states.
The applicant's ship was approached, in order for a control to be carried out, when it was in Romanian territorial waters, in the exclusive economic zone of Romania. 
In this situation, art. 17 of (EC) Regulation no. 2371/2002, which provides for equal access to waters and resources in Community waters, were applicable.
The Commission made it clear to the Romanian authorities that the criminal prosecution directed against the applicant was contrary to EU law, especially (EC) Regulation no. 2371/2002 and (EU) Regulation no. 1256/2010.
This procedure was pending on October 2, 2013, when the Court of Appeal adopted the final decision and the Commission closed the procedure only after Romania amended its domestic legislation and the rules regarding access to the waters and resources of the Black Sea, which are under its jurisdiction, to ensure their compliance with European law.
Considering the provisions of (EC) Regulation no. 2371/2002 and the Commission's very clear opinion on the application of the rules of the common fishing policy, the Court considers that, by sentencing the applicant, the Court of Appeal committed a blatant error of law. If there were doubts, the court of appeal could have referred the CJEU regarding the interpretation of the rules in question. 
For these reasons, it was held that the applicant was the victim of a "denial of justice", and art. 6 § 1 of the Convention was violated.
The Court analysed the case in relation to art. 1 Protocol 1 to the ECHR. The plaintiff complained that the complementary sanctions of a pecuniary nature, (confiscation in part, by monetary equivalent, of the value of the vessel and the prohibition to fish) led to a violation of art. 1 of Protocol no. 1 to the Convention.
The Court reasoned that a license to carry out a commercial activity constitutes an asset and the withdrawal of such a license constitutes an interference in the exercise of the right of ownership.
The applicant held a Bulgarian fishing license and was authorized to fish in Community waters, including in Romania's exclusive economic zone in the Black Sea. 
The measure to temporarily prohibit fishing in this area narrowed the scope of the license and partially emptied the license of its substance, which constituted an interference with the plaintiff's exercise of the right to respect his property.
The Court reasoned that the pecuniary sanctions imposed on the applicant by the Court of Appeal were based on the provisions of GEO no. 23/2008 and were complementary to the conviction for illegal fishing. 
The criminal conviction of the applicant was the result of an obvious error of law, because the provisions of the domestic law applied could not serve as a legal basis, considering that clear European rules allowed him to fish in the exclusive economic zone of Romania in the Black Sea. The Court held that it was no longer necessary to examine whether a fair balance had been maintained between the requirements of the general interest of the community and the imperatives of the defence of individual rights.
The Court held that art. 1 of Protocol no. 1 was violated.
Relation of the case to the EU Charter
The EU Charter wasn’t  invoked
Relation between the EU Charter and ECHR
N/A
Use of Judicial Interaction technique(s)
N/A
Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)
N/A
Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)
In this case, in the first instance (the court) identified and correctly applied EU law, found that art. 17 para. (1) from (EC) Regulation no. 2371/2002 expressly regulated the principle of free access to Member States' fishing zones for any Community vessel holding a fishing license. The court of judicial review (Court of Appeal) modified the decision of the court and completely changed the decision of the first instance. The Court of Appeal issued a final judgment finding that the applicable rules in this area were the United Nations Convention on the Law of the Sea and the national legislation adopted under that Convention. The Court of Appeal rejected the argument based on the application of EU law in the field of fisheries.
Strategic use of judicial interaction technique (purpose aimed by the national court)
N/A
Impact on Legislation / Policy
The procedure for ascertaining the non-fulfilment of obligations was closed only in 2018 when the Ministry of Agriculture and Rural Development expressly authorized by normative act (order) the access to the waters and resources of the Black Sea, under the jurisdiction of Romania, of all fishing vessels operating under the flag of a Member State and holding a fishing licence.
Notes on the national implementation of the preliminary ruling by the referring court
In the document sent by the Government of Romania to the Secretariat of the Committee of Ministers of the Council of Europe - Directorate of Executions, it is recorded that the individual and general measures ordered by the ECHR judgment have been executed. The government ordered that the decision be disseminated at the level of all appeal courts in the country in order to draw attention to the mistakes made. The government argued that this conviction refers to a factual situation that is no longer current, being very unlikely for the situation to repeat itself.

By not applying art 17 of Regulation nr. 2371/2002, which had a direct effect in the Romanian legal order and prevailed over national law, the Romanian courts had made a manifest error of law.

Condemning Romania for violating art. 6 paragraph 1 in the conditions in which the European Court notes that the national courts by the pronounced decision have committed the act of denial of justice is a solution with a great impact.
The ECHR decision reinforces the recommendations of the European Commission on the pre-eminence of EU law over national law.
The plaintiff's fundamental rights to a fair trial and his right to property were violated by the decision of the Court of Appeal. Through the decision of the ECHR, the violation was found and the plaintiff was granted adequate reparation.
Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?

The national referring court did not quote judgements of the CJEU/ECtHR.

Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?

The standards and recommendations of GRECO and the Venice Commission are not mentioned in the Spasov case.

Did the national court take into account national case law on fundamental rights?

The national case law on fundamental rights was not considered an important element in this case.

If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information

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 exclusive economic zone 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 Court decided that the applicant had been the victim of a “denial of justice”.

Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?

Romania amended its domestic legislation and the rules on access to the waters and resources of the Black Sea before the decision of ECHR in Spasov case.

Impact on national case law from the same Member State or other Member States
N/A
Connected national caselaw / templates
N/A
Author
Anca Ghencea, Bucharest Bar Association
 
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