Opinion of the Advocate General — ECLI:EU:C:2018:38
Date: 2018-01-25
Language of the case: German
Subject matter: Agriculture and Fisheries
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Third Chamber), 13 June 2018 1. Questions referred for a preliminary ruling — Admissibility — Need for a preliminary ruling and relevance of the questions referred — Assessment by the national court — Presumption of relevance of the questions referred 2. Fisheries — Conservation of the resources of the sea — Conservation measures necessary to comply with the obligations under EU environmental law — Adoption by a Member State, for the waters under their sovereignty or its jurisdiction, of the measures necessary in order to comply with its obligations under Article 6 of Directive 92/43 — Complete ban on commercial sea fishing using fishing gear that touches the seabed and fixed nets in Natura 2000 zones — Measures affecting fishing vessels flying the flag of other Member States — Unlawful (European Parliament and Council Regulation No 1380/2013, Art. 11(1); Council Directive 92/43, Art. 6) 3. Fisheries — Conservation of the resources of the sea — Conservation measures necessary to comply with the obligations under EU environmental law — Adoption by a Member State, for the waters under their sovereignty or its jurisdiction, of the measures necessary in order to comply with its obligations under Article 6 of Directive 92/43 — Unlawful (European Parliament and Council Regulation No 1380/2013, Art. 11(1); European Parliament and Council Directive 2004/35) 1. See the text of the decision. (see para. 29) 2. Article 11 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 must be interpreted as meaning that it precludes a Member State from adopting, with respect to the waters under their sovereignty or jurisdiction, the measures which are necessary in order for it to meet its obligations under Article 6 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora and which completely prohibit, in Natura 2000 areas, commercial fishing using gear which touches the sea bed and fixed nets, since such measures affect fishing vessels flying the flag of other Member States. First, as regards the concept of ‘conservation measures’, it must be held that the words used in Article 11 of that regulation do not help to determine the scope of that concept. However, for the purposes of interpreting Article 11(1), account must be taken not only of the wording of that provision, but also its context and the objective it pursues (see, to that effect, judgment of 5 April 2011, Société fiduciaire nationale d’expertise comtable, C‑119/09, EU:C:2011:208, paragraph 25). The context of which Article 11(1) of Regulation No 1380/2013 forms part is characterised by the fact that the conservation measures set out in Article 7(1) of that regulation includes the technical measures mentioned in Article 7(2) thereof, among which are ‘measures concerning the limitations or prohibitions on the use of certain fishing gears, and on fishing activities, in certain areas or periods’. Having regard to that definition, measures such as those mentioned by the referring court, which consist in prohibiting, in EU waters, fishing methods using gear that touches the sea bed and fixed nets, may constitute conservation measures within the meaning of Article 7(2)(c) of Regulation No 1380/2013 and thus fall within Article 11(1) thereof. Second, with regard to the concept of ‘measures necessary for compliance with obligations under the relevant EU law’ it is true that, prima facie, the use of the verb ‘meet’ could be understood as expressing the obligation, for the measures referred to, to achieve by themselves the objective pursued by the relevant legislation. However, it must be observed that, in accordance with Article 3(1) of Directive 92/43, the coherent European ecological network of special areas of conservation provided for by that directive, referred to by the national court as ‘Natura 2000 sites’, aims to enable the maintenance or, where appropriate, the restoration to a favourable conservation status of natural habitat types and species’ habitats in their natural range. Having regard to the nature of that objective and to the fact that those habitats are part of complex ecosystems, a specific conservation measure can, in general, only contribute, together with other measures, to the achievement of those objectives, without being sufficient itself to do so. Therefore, to interpret Article 11(1) of Regulation No 1380/2013 as authorising only the adoption of measures which considered separately are sufficient to achieve that objective would deprive that provision of its effectiveness. Third, as far as concerns the concept of ‘fishing vessels of other Member States’, the wording of Article 11(1) of Regulation No 1380/2013 does not contain any indication as to the factors constituting that concept. However, it follows from Article 91(1) and Article 94(1) of the Montego Bay Convention that the EU is obliged to respect that ships have the nationality of the State whose flag they are entitled to fly and that every State is to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. It follows that the concept of ‘fishing vessels of other Member States’ used in Article 11(1) of Regulation No 1380/2013, must be understood as referring exclusively to ships flying the flag of a Member State other than that exercising its sovereignty or jurisdiction over the area concerned and which are subject, on that basis, to the jurisdiction and effective control of the Member State whose flag they fly. (see paras 37-39, 46-48, 52-54, 56, operative part 1) 3. Article 11(1) of Regulation No 1380/2013 must be interpreted as meaning that it precludes the adoption, by a Member State, of measures such as those at issue in the main proceedings, with respect to the waters under its sovereignty or its jurisdiction, which are necessary in order for it to meet its obligations deriving from Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage. (see para. 62, operative part 2)