CELEX: 62016CJ0540
Reference for a preliminary ruling
Common fisheries policy
Regulation (EU) No 1380/2013
Article 16(6) and Article 17
Allocation of fishing opportunities
National legislation laying down a method based on objective and transparent criteria
Inequalities in the conditions of competition between operators in the sector
Charter of Fundamental Rights of the European Union
Articles 16 and 20
Freedom to conduct a business
Equal treatment
Proportionality

This request for a preliminary ruling concerns the interpretation of Article 2(5)(c), Article 16(6) and Article 17 of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (
OJ 2013 L 354, p. 22
), and of Articles 16 and 20 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
The request has been made in the context of proceedings between ‘Spika’ UAB, ‘Senoji Baltija’ AB, ‘Stekutis’ UAB and ‘Prekybos namai Aistra’ UAB (together, ‘Spika and Others’), four Lithuanian fishing operators, and the Žuvininkystės tarnyba prie Lietuvos Respublikos žemės ūkio ministerijos (Fisheries Department of the Ministry of Agriculture, Lithuania) concerning the allocation of additional individual fishing opportunities in the Baltic Sea for 2015 by that department.
Legal context
EU law
Paragraphs 1, 2 and 5 of Article 2 of Regulation No 1380/2013, which concern the objectives of the common fisheries policy, provide:
‘1.   The [common fisheries policy] shall ensure that fishing and aquaculture activities are environmentally sustainable in the long-term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies.
2.   The [common fisheries policy] shall apply the precautionary approach to fisheries management, and shall aim to ensure that exploitation of living marine biological resources restores and maintains populations of harvested species above levels which can produce the maximum sustainable yield.
…
5.   The [common fisheries policy] shall, in particular:
…
(c)
provide conditions for economically viable and competitive fishing capture and processing industry and land-based fishing related activity;
(d)
provide for measures to adjust the fishing capacity of the fleets to levels of fishing opportunities consistent with paragraph 2, with a view to having economically viable fleets without overexploiting marine biological resources;
…
(f)
contribute to a fair standard of living for those who depend on fishing activities, bearing in mind coastal fisheries and socio-economic aspects;
…
(i)
promote coastal fishing activities, taking into account socio-economic aspects;
…’
Article 4 of that regulation, entitled ‘Definitions’, provides in paragraph 1:
‘For the purposes of this Regulation the following definitions shall apply:
…
(4)
“fishing vessel” means any vessel equipped for commercial exploitation of marine biological resources or a blue fin tuna trap;
(5)
“Union fishing vessel” means a fishing vessel flying the flag of a Member State and registered in the Union;
…
(30)
“operator” means the natural or legal person who operates or holds any undertaking carrying out any of the activities related to any stage of production, processing, marketing, distribution and retail chains of fisheries and aquaculture products;
…’
Article 16, entitled ‘Fishing opportunities’, provides in paragraph 6:
‘Each Member State shall decide how the fishing opportunities that are allocated to it, and which are not subject to a system of transferable fishing concessions, may be allocated to vessels flying its flag (e.g. by creating individual fishing opportunities). It shall inform the Commission of the allocation method.’
Article 17 of that regulation reads as follows:
‘When allocating the fishing opportunities available to them, as referred to in Article 16, Member States shall use transparent and objective criteria including those of an environmental, social and economic nature. The criteria to be used may include, inter alia, the impact of fishing on the environment, the history of compliance, the contribution to the local economy and historic catch levels. Within the fishing opportunities allocated to them, Member States shall endeavour to provide incentives to fishing vessels deploying selective fishing gear or using fishing techniques with reduced environmental impact, such as reduced energy consumption or habitat damage.’
Lithuanian law
The Lietuvos Respublikos žuvininkystės įstatymas (Lithuanian law on Fisheries), as supplemented and amended by Law No XII‑1523 of 23 December 2014, which entered into force on 1 January 2015 (‘the Law on Fisheries’) is intended, in particular, to implement, in national law, Regulation No 1380/2013. Article 17
of that law lays down the general principles governing the allocation of fishing opportunities in the Baltic Sea.
Article 17
(1) of the Law on Fisheries sets out the method for determining the allocation of individual fishing opportunities to operators having a vessel flying the flag of Lithuania. According to that provision, it is necessary, to that end, to calculate each operator’s average catch of the different species of fish in question over a period of three calendar years, chosen by the operator among the last seven calendar years (‘the historical share’).
Under Article 17
(4) of that law, the individual fishing opportunities allocated to an operator are equal to the historical share, which may be reduced or increased in accordance with the following criteria:
–
The historical share shall be increased by 0.1% for each share, in percentage terms, in the fishery products of the species concerned sold in the territory of the Republic of Lithuania, determined on the basis of all the fishery products of that species caught by the operator during the reference years.
–
In order to take into account the lesser effects of an operator’s commercial fishing on the environment, the historical share shall be increased by 5% when selective commercial fishing gear and fishing techniques that preserve natural habitats are used, and by 5% for fishing vessels which pollute the environment less and use less energy.
–
The historical share shall be reduced by 2% for each serious infringement committed during the reference years and by 0.5% for each infringement of the rules governing commercial fishing that was not considered serious.
In accordance with Article 17
(6) of that law, a single economic operator cannot have more than 40% of the fishing opportunities allocated to the Republic of Lithuania for a specific species of fish.
Article 17
(7) and (8) of that law provides for the allocation of individual fishing opportunities by auction. After deduction of the fishing opportunities intended for use by small-scale coastal fishing, the share of the fishing opportunities by species allocated to the Republic of Lithuania which remains following allocation on the basis of historical share must represent at least 5% of those opportunities. That remaining share will be allocated by auction to operators having a fishing vessel flying the Lithuanian flag, provided that the maximum fishing capacity set by the Ministry of Agriculture in the geographical fishing area in question is not exceeded.
The dispute in the main proceedings and the question referred for a preliminary ruling
The order for reference indicates that, according to the minutes of a meeting held on 11 March 2015 by the Zvejybos Baltijos jurije kvotu skyrimo komisija (Allocation Board of fishing opportunities in the Baltic Sea, Lithuania), set up by Decision No VI‑24 of 18 March 2013 of the Director of the Fisheries Department of the Ministry of Agriculture, that board allocated additional individual fishing opportunities to operators that had submitted an application to that effect in accordance with the following distribution:
–
‘Banginis’ UAB: 175 tonnes of herring and 252 tonnes of sprat;
–
‘Grinvita’ UAB: 29 tonnes of herring and 49 tonnes of sprat;
–
‘Baltlanta’ UAB: 23 tonnes of herring and 16 tonnes of sprat; and
–
‘Baltijos šprotai’ UAB: 202 tonnes of herring and 285 tonnes of sprat.
Spika and Others contested the lawfulness of the allocation of the additional fishing opportunities of herring and sprat and brought an action before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) seeking annulment of the abovementioned minutes, claiming that the individual fishing opportunities allocated to Grinvita, Baltlanta, Banginis and Baltijos šprotai had no legal basis.
By judgment of 6 November 2015, that court dismissed the action brought by Spika and Others. They therefore appealed to the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) asking it to set aside the first instance judgment and to give a fresh ruling upholding their action.
The referring court points out, in the first place, that the Law on Fisheries implements, in particular, Regulation No 1380/2013 and concludes that, on the basis of that law, operators are not treated on an equal footing as regards the allocation of fishing opportunities. In such circumstances and in the absence of objective justification, the different treatment of certain operators constitutes an infringement of the Lithuanian constitutional principles of free competition and equal treatment.
In the second place, that court asks whether the discretion conferred on the Member States by Article 16(6) of Regulation 1380/2013 allows the Member States to lay down criteria for the allocation of fishing opportunities resulting in the creation of unequal conditions for operators who are competing with each other to secure such opportunities.
The referring court takes the view that that discretion is not unlimited, in that Article 17 of that regulation provides that the Member States must adopt transparent and objective criteria, including criteria of an environmental, social and economic nature. More specifically, it is uncertain, first, whether national legislation, such as the Law on Fisheries, which lays down a method of allocation of individual fishing opportunities which is based principally on historical data relating to quantities caught and which may, on that ground, create those conditions of inequality, may be considered ‘objective’. Second, the referring court is uncertain whether the restrictions on competition deriving from the adoption of that method are incompatible with EU law, even if that method meets the conditions of objectivity and transparency set out in Article 17 of Regulation No 1380/2013.
In the third place, the referring court points out that when a Member State implements an EU regulation it must comply with the Charter. Thus, it asks whether Articles 16 and 20 of the Charter, concerning freedom to conduct a business and equality before the law, preclude a Member State from adopting a method of allocation of fishing quotas which creates unequal conditions for fishing operators seeking to secure fishing opportunities, even if that method is based on the criteria set out in Article 17 of Regulation No 1380/2013.
In the fourth and final place, in the light of the competing objectives of the common fisheries policy, the referring court seeks to ascertain whether Article 2(5)(c) of Regulation No 1380/2013 must be interpreted as precluding Member States from choosing a method of allocation of fishing quotas which causes unequal conditions for operators who are competing for a greater quantity of fishing opportunities, even if that method is based on a transparent and objective criterion.
In those circumstances, the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Are Articles 17 and 2(5)(c) of Regulation (EU) [No 1380/2013], read in the light of Articles 16 and 20 of the [Charter], to be interpreted as meaning that, when a Member State exercises the discretion provided for in Article 16(6) [of that regulation], it is prohibited from choosing a method of allocation of the fishing quotas allocated to it which causes unequal conditions for [operators] who are competing for a greater quantity of fishing opportunities, even if that method is based on a transparent and objective criterion?’
Consideration of the question referred
The jurisdiction of the Court
Banginis argues that the Court does not have jurisdiction to rule on the question referred to it. According to that company, EU law is not applicable to the dispute in the main proceedings, in that the Republic of Lithuania, when it adopts a method of allocation of individual fishing opportunities does not implement EU law, but acts on the basis of its exclusive competence.
In order to determine whether national legislation involves the implementation of EU law, some of the points to be determined are whether that legislation is intended to implement a provision of EU law, the nature of that legislation and whether it pursues objectives other than those covered by EU law (see, to that effect, judgment of 6 March 2014, Siragusa,
C‑206/13
,
EU:C:2014:126
, paragraph
).
When they adopt the method of allocation of fishing opportunities which have been allocated to them, Member States are exercising a competence which is expressly attributed to them, in the framework of the implementation of the common fisheries policy, by a provision of EU law, namely Article 16(6) of Regulation No 1380/2013.
Accordingly, it must be concluded that when it adopted the method of allocation of fishing opportunities to vessels flying the Lithuanian flag, the Republic of Lithuania implemented EU law. Consequently, the Court has jurisdiction to answer the question referred.
Substance
By its question, the referring court asks, in essence, whether Article 16(6) and Article 17 of Regulation (EU) No 1380/2013, and Articles 16 and 20 of the Charter, must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, by which that Member State adopts a method of allocation of fishing opportunities which may create a difference in treatment between operators having fishing vessels flying that Member State’s flag.
In order to answer that question, it must be established, in the first place, whether a method of allocation of fishing opportunities, such as that at issue in the main proceedings, meets the conditions laid down by Article 17 of Regulation No 1380/2013.
According to Article 16(6) of that regulation, each Member State decides how the fishing opportunities that are allocated to it may be allocated to vessels flying its flag. It follows, in that regard, from the case-law of the Court concerning Article 20(3) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (
OJ 2002 L 358, p. 59
), which corresponds to Article 16(6) of Regulation No 1380/2013, that the Member States enjoy a measure of discretion in implementing that regulation (see, to that effect, order of 5 May 2009, Atlantic Dawn and Others v Commission,
C‑372/08 P
, not published,
EU:C:2009:287
, paragraph
).
In exercising that discretion, the Member States must use, in accordance with Article 17 of Regulation No 1380/2013, ‘transparent and objective’ criteria.
In the present case, the Republic of Lithuania has chosen to allocate the fishing opportunities that have been allocated to it by using a method based principally on the criterion of ‘catch levels’. Under that criterion, the majority of those fishing opportunities are allocated on the basis of an operator’s average catch of a species of fish over a period of three calendar years, chosen by the operator among the last seven calendar years.
That criterion is expressly referred to in Article 17 of Regulation No 1380/2013, in the list of criteria that the Member States may choose to use for allocating the fishing opportunities that they have been granted. That criterion is also set out in a legislative provision, namely Article 17
of the Law on Fisheries, which, by referring to the historical share of the operators in question, is based on objective data, measurable and verifiable by the competent authorities.
In those circumstances, it must be concluded that a method of allocation of fishing opportunities, such as that at issue in the main proceedings, meets the conditions of transparency and objectivity referred to in Article 17 of Regulation No 1380/2013.
In the second place, it must be established whether the adoption of such a method of allocation entails an infringement of Articles 16 and 20 of the Charter, when that method leads to the creation of more favourable conditions for operators having a historical share of catch levels (‘historical operators’), to the detriment of operators who do not have such a historical share and wish to enter the fishing market or increase their production (‘new operators’).
According to the information before the Court, and which it is for the referring court to verify, whilst historical operators can obtain fishing opportunities simply by providing their catch levels to the competent authorities, fishing opportunities are allocated to new operators on a residual basis only, depending on the remaining balance of the quota granted to the Republic of Lithuania after allocations on the basis of historical share have been made. Thus, such a method of allocation may, first, be detrimental to the freedom to conduct a business of new operators, by limiting their right to operate on the market at issue, and, second, result in unjustified unequal treatment between the different types of operators.
In that regard, it must be pointed out that, under Article 16 of the Charter, the freedom to conduct a business in accordance with European Union law is recognised. The protection conferred by that article covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition (judgment of 17 October 2013, Schaible,
C‑101/12
,
EU:C:2013:661
, paragraph
).
As regards Article 20 of the Charter, it enshrines the general principle of EU law of equal treatment, which requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 5 July 2017, Fries,
C‑190/16
,
EU:C:2017:513
, paragraph
).
It follows from Article 52(1) of the Charter that any limitation on the exercise of the rights and freedoms recognised by it cannot be accepted unless it is provided for by law and respects the essence of those rights and freedoms. Moreover, in accordance with the principle of proportionality, such limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
In the present case, it is common ground, as noted in paragraph 30 of this judgment, that the method of allocation of fishing opportunities at issue in the main proceedings has been set out in law, namely the Law on Fisheries.
Furthermore, that law establishes, first, a system of auction allowing new operators to acquire non-allocated fishing opportunities, on the basis of the balance of the quota granted to the Republic of Lithuania after allocations on the basis of historical share have been made. In addition, that law limits the fishing opportunities which can be allocated to each operator for a given species of fish to 40%. Thus, the allocation method at issue in the main proceedings, since it does not entail the complete closure of the market in question, respects the essence of the freedom guaranteed by Article 16 of the Charter.
Second, the Law on Fisheries does not have the effect of calling into question the principle of equal treatment, and provides in particular, in Article 17
(4), for the possibility of taking into account specific situations in which operators may find themselves. Therefore, that method respects also the essence of the rights that the different types of operators derive from Article 20 of the Charter.
Nevertheless, it is still necessary to ascertain whether such limitations on the freedoms set out in Articles 16 and 20 of the Charter meet an EU objective of general interest and, if so, whether they respect the principle of proportionality.
As regards the question whether the national legislation at issue in the main proceedings contributes to the achievement of a general interest of the European Union, it must be noted that it determines the fishing opportunities of vessels flying the Lithuanian flag, thus regulating access to fisheries. Consequently, those measures are justified by the objective of the common fisheries policy, referred to in Article 2(1) of Regulation No 1380/2013, which seeks to ensure that fishing and aquaculture activities are environmentally sustainable in the long term.
In addition, it must be noted that the method of allocation of fishing opportunities at issue in the main proceedings, which is based principally on historical share, seeks to ensure that operators who have a fleet of vessels whose fishing capacity is in principle capable of handling the volume of catches corresponding to those opportunities are given priority. That being so, that method is justified by the objective of the common fisheries policy set out in Article 2(5)(d) of Regulation No 1380/2013 and also makes it possible to maintain economically viable fleets, as referred to in that provision.
Furthermore, the adoption of such a method of allocation is justified also by the socio-economic objective set out in Article 2(5)(f) of Regulation No 1380/2013, in that the preservation of the economic viability of the fleets allows historical operators to continue to operate on the market in question and thus to ensure that a fair standard of living for those who depend on fishing activities is maintained.
Where national legislation, such as that at issue in the main proceedings, pursues the objectives of the common fisheries policy, as enshrined in Regulation No 1380/2013, it must be found to meet an objective of general interest recognised by the Union within the meaning of Article 52(1) of the Charter.
Next, it must be ascertained whether the limitations entailed by such legislation comply with the principle of proportionality, in that they are suitable for attaining the objectives pursued and do not go beyond what is necessary to achieve them.
It is true that it is for the referring court, in the present case, to ascertain, on the basis of an overall assessment of all the relevant facts and points of law, whether the national legislation at issue in the main proceedings satisfies the conditions set out in the previous paragraph. Nevertheless, it is for the Court to provide the referring court with all the points of interpretation of EU law that will enable it to reach a decision (see, to that effect, judgment of 20 December 2017, Global Starnet,
C‑322/16
,
EU:C:2017:985
, paragraph
).
As regards the suitability of the national legislation at issue in the main proceedings for attaining the objectives of general interest which it pursues, it must be noted that, by means of the method of allocation of fishing opportunities which it lays down, that legislation makes it possible in particular to prevent marine biological resources from being over-exploited and their renewal from being hindered or stopped. Moreover, it follows from the order for reference that the historical share is increased by 5% if the operators use fishing techniques that preserve natural habitats, or even by an additional 5% when those operators use fishing vessels that pollute the environment less and use less energy.
In those circumstances, that legislation is capable of ensuring that fishing activities remain environmentally sustainable, as set out in Article 2(1) of Regulation No 1380/2013.
It must be added that, since the historical catch level is taken into account when the method of allocation at issue in the main proceedings is applied, historical operators are able to rely, as regards the future, on a relatively stable volume of fishing opportunities in relation to preceding years. Thus, those operators can, on the one hand, recoup the often substantial investments that they have made in order to operate on the market in question and, on the other, plan the activities necessary to ensure the continued efficiency of their fleets.
Consequently, the national legislation at issue in the main proceedings and the method of allocation of fishing opportunities that it lays down are also suitable for ensuring the attainment of the underlying socio-economic objectives of Article 2(5)(d) and (f) of Regulation No 1380/2013.
As regards the question whether or not that method entails restrictions on the freedoms enshrined in Articles 16 and 20 of the Charter that go beyond what is necessary to achieve the objectives pursued by the national legislation at issue in the main proceedings, it is apparent from the order for reference, first of all, that the historical share may be increased or decreased according to certain criteria, in particular environmental criteria or criteria which contribute to the development of the local economy. The referring court also notes that the historical share is reduced for each infringement, whether serious or not, occurring during the reference years referred to in Article 17
(1) of the Law on Fisheries, by 2% or 0.5% retrospectively.
Next, a single historical operator cannot have more than 40% of the fishing opportunities allocated to the Republic of Lithuania in respect of a given species of fish.
Finally, as noted in paragraph 38 of the present judgment, the share of fishing opportunities that has not been allocated as a priority to historical operators — a share that must represent at least 5% of the fishing opportunities granted to the Republic of Lithuania — is allocated by auction to other operators having a fishing vessel flying the Lithuanian flag.
Accordingly, not only does the method of allocation of fishing opportunities at issue in the main proceedings not reserve fishing opportunities solely for historical operators on the basis of their respective historical shares but, in addition, it allows for those shares to be weighted on the basis of a number of objective factors.
That method of allocation therefore does not go beyond what is necessary to achieve the objectives of general interest pursued by the national legislation at issue in the main proceedings and, consequently, it does not infringe the principle of proportionality.
In the light of all those considerations, the answer to the question referred is that Article 16(6) and Article 17 of Regulation (EU) No 1380/2013, and Articles 16 and 20 of the Charter, must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, by which that Member State adopts a method of allocation of fishing opportunities which, while being based on a transparent and objective allocation criterion, may create a difference in treatment between operators having fishing vessels flying that Member State’s flag, provided that that method pursues one or more general interests recognised by the European Union and respects the principle of proportionality.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

Article 16(6) and Article 17 of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, and Articles 16 and 20 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, by which that Member State adopts a method of allocation of fishing opportunities which, while being based on a transparent and objective allocation criterion, may create a difference in treatment between operators having fishing vessels flying that Member State’s flag, provided that that method pursues one or more general interests recognised by the European Union and respects the principle of proportionality.

[Signatures]
(
*1
)	Language of the case: Lithuanian.