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Brussels, 18th October

Seeding of oysters in Dutch coastal waters referred to the European Court

The European Commission has taken the Netherlands to the European Court of Justice over its rules restricting the seeding of mussels and oysters coming from other Member States into Dutch coastal waters. The Commission does not agree with the Dutch argument that this is necessary to protect the vulnerable habitats of such waters, as the kind of protection sought by the Dutch authorities is already guaranteed by a parallel licensing regime in execution of the Dutch nature protection law. The Commission has referred this case to the European Court of Justice arguing that the Netherlands makes the free movement of goods in the internal market difficult.

For decades fisheries companies have been catching young mussels and oysters in other Member States and seeding them out in Dutch waters, to harvest the fattened mussels and oysters later on and sell them for consumption. However, in recent years the Netherlands have been subjecting these seeding activities to a restrictive fisheries licensing regime, highlighting the need to protect the vulnerable habitats of such waters as the Oosterschelde and the Waddenzee against the accidental introduction of alien species.

The Commission takes the view that the risk of such accidental introduction is not of such a degree as to warrant the restrictions on intra-community trade created by the licensing regime. Moreover, transfers of mussels and oysters between different Dutch waters, which should entail the same degree of risk, are not subjected to the same kind of restrictions. Finally, the kind of protection sought by the Dutch authorities is already guaranteed by a parallel licensing regime in execution of the Dutch nature protection law.


The EC Treaty requires the Commission to ensure that EU law is correctly implemented. The Commission has been granted powers to do so under the infringement procedure laid down in Articles 226 and 228 of the Treaty. The main purpose of this procedure is not to bring infringement proceedings before the Court of Justice, but to bring the Member State back into line with EU law during a pre-litigation phase.

The main steps of the pre-litigation procedure are:

1. Letter of formal notice

The letter of formal notice represents the first stage in the pre-litigation procedure, during which the Commission requests a Member State to submit its observations on an identified problem regarding the application of Community law within a given time limit. The Commission does not make an accusation but offers the Member State the opportunity to give its explanation regarding an alleged infringement. The Member States is given two months to reply.

2. Reasoned opinion

The reasoned opinion gives a detailed statement, based on the letter of formal notice, of the reasons that have led the Commission to conclude that the Member State concerned has failed to fulfil one or more of its obligations under the Treaty or other EU legislation. The Member State has two months to reply.

3. Decision to refer a case to the Court of Justice

Referral to the Court of Justice of the European Communities opens the litigation procedure.

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