62022TJ0781_RES
Case T‑781/22
Madre Querida and Others
v
European Commission
Judgment of the General Court (Seventh Chamber, Extended Composition) of 11 June 2025
(Common Fisheries Policy – Article 9 of Regulation (EU) 2016/2336 – Implementing Regulation (EU) 2022/1614 – Methods and criteria for determining areas where vulnerable marine ecosystems are known to occur or are likely to occur – Establishment of a list of areas where the presence of vulnerable marine ecosystems is proven or probable – Establishment of buffer zones – Plea of illegality – Proportionality)
Fisheries – Conservation of the resources of the sea – Protection of vulnerable marine ecosystems – List of areas where such ecosystems are known to occur or are likely to occur – Determination criteria – Assessment of the significant adverse impacts of passive gears in each area included in that list – Exclusion – Breach of the principles of proportionality and non-discrimination – None
(European Parliament and Council Regulations No 1380/2013, Art. 4, and 2016/2336, Art. 9(4) and (6); Council Regulation No 734/2008, Art. 2; Commission Regulation 2022/1614)
(see paragraphs 30, 31, 38, 41-46, 48-52, 54, 56, 69, 70, 103)
Fisheries – Conservation of the resources of the sea – Protection of vulnerable marine ecosystems – List of areas where such ecosystems are known to occur or are likely to occur – Method of determination – Discretion of the Commission – Establishment of protective buffer zones – Admissibility – Breach of the principle of proportionality – None
(European Parliament and Council Regulation 2016/2336, Art. 9; Commission Regulation 2022/1614)
(see paragraphs 80, 83, 91-95, 97)
Acts of the institutions – Basic legislation and implementing legislation – Implementing legislation not capable of amending or supplementing the essential elements of the basic legislation – Classification of the essential elements – Taking account of the characteristics and particular features of the field concerned – Implementing acts establishing a list of areas where vulnerable marine ecosystems are known to occur or are likely to occur – Practical implementation of the regime for the protection of those ecosystems adopted by the basic legislation – Admissibility
(Art. 291(2) TFEU; European Parliament and Council Regulation 2016/2336, Art. 9(6))
(see paragraphs 117-120, 123-126)
Fisheries – Conservation of the resources of the sea – Precautionary approach and ecosystem-based approach to fisheries management – Protection of vulnerable marine ecosystems – Prohibition on fishing with any bottom gears in all areas where vulnerable marine ecosystems are known to occur or are likely to occur – Infringement of the obligation to state reasons and of the principle of proportionality – None
(European Parliament and Council Regulations No 1380/2013, Art. 2(1) to (3) and (5)(a), (f), (i) and (j), and 4(1)(8) and (9), and 2016/2336, Art. 9(9); Council Regulation No 734/2008, Art. 2)
(see paragraphs 135, 141, 143, 150-152, 155)
Résumé
In the context of two actions for the annulment of Implementing Regulation 2022/1614, (
1
) the General Court, sitting in extended composition with a panel of five judges, sets out the criteria for determining the areas where vulnerable marine ecosystems (‘VMEs’) are known to occur or are likely to occur, in the light of the principles stemming from Regulation 2016/2336 (
2
) (‘the basic regulation’).
Regulation No 1380/2013 (
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) on the Common Fisheries Policy (CFP) provides, inter alia, for the adoption of measures for the conservation and sustainable exploitation of marine biological resources. In that context, Article 9(6) of the basic regulation provides for the adoption of implementing acts for the purpose of establishing a list of areas where VMEs are known to occur or are likely to occur (‘VME areas’). According to Article 9(9) of the basic regulation, fishing with bottom gears is to be prohibited in such areas.
On 15 September 2022, the European Commission, by means of Implementing Regulation 2022/1614, adopted that list on the basis of two advice documents issued by the International Council for the Exploration of the Sea (ICES).
The Kingdom of Spain, several Spanish companies owning fishing vessels and a fishery producer organisation comprising those companies are requesting that the Court annul that implementing regulation, so far as concerns the establishment of that list. In support of their actions, they allege, first, that the implementing regulation infringes the basic regulation and certain general principles of EU law and, secondly, that Article 9(6) and (9) of the basic regulation is invalid.
By its judgments, the Court dismisses both actions in their entirety.
Findings of the Court
In the first place, the Court examines whether the Commission infringed the basic regulation, the principle of proportionality or the principle of non-discrimination when establishing the list of VME areas, in the context of complaints relating to the impact of certain types of fishing gears, on the one hand, and to the methodology used to delimit the areas, on the other hand.
As regards the types of fishing gears, the Court, first of all, interpreted Article 9(6) of the basic regulation in order to define the criteria for determining VME areas and to determine whether that provision requires an assessment of the significant adverse impacts of fishing in those areas with passive bottom gears, that is to say fishing gears fixed at a specific point of the marine environment. According to the applicants, the Commission should have assessed the impact of such gears, since they have less of a negative impact on VMEs than mobile bottom gears. Moreover, the applicants in Case T‑781/22 argue that the identical treatment, without any objective reason, of passive and mobile fishing gears infringes the principle of non-discrimination.
However, Article 9(6) of the basic regulation requires neither such an assessment nor a fisheries management approach or a management approach which includes an assessment of the consequences of the relevant VME protection measures on fishing activities and on economic and social life.
First, it follows from the definitions laid down by the basic regulation and Regulation No 734/2008 (
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) that the presence of VMEs is demonstrated or indicated by elements relating to the nature and quantity of species encountered by both mobile and passive gears. Moreover, the proven or probable presence of protected species leads to the classification of the relevant areas as VME areas, so as to ensure their protection against bottom gears in general. An area may therefore be classified as a VME area on account of the significant adverse impacts resulting solely from the use of mobile bottom gears or the use of bottom gears in general, without it being possible to call that classification into question in relation to passive bottom gears. In such circumstances, the establishment of the list of those areas cannot depend on a comparative analysis of mobile and passive gears, even if the latter may pose lower risks than mobile gears.
Secondly, it is also clear from the guidelines of the Food and Agriculture Organisation of the United Nations (FAO), to which the basic regulation refers for the purposes of the annual assessment of VME areas, that the classification of a marine ecosystem as vulnerable does not presuppose an examination of the adverse impacts of passive bottom gears, since that classification is based on the characteristics of the ecosystem itself.
Thirdly, according to a teleological and systemic analysis of Article 9(6) of the basic regulation, it cannot be inferred from that provision that a management approach, which includes the requirement to assess the consequences of VME conservation measures on fishing activities and on economic and social life, should be applied in relation to the establishment of the list of VME areas. On the contrary, such an approach is incompatible with the concept of ‘implementing act’, since it would amend or supplement the basic regulation in its essential elements concerning the protection of VMEs. The Commission could not, in the context of the powers conferred on it to adopt an implementing regulation, strike a balance between the protection of VMEs and other objectives of the CFP.
Next, in so far as it was appropriate, when drawing up the list of VME areas, to rely on the characteristics of the ecosystems themselves, taking into account the risk of damage associated with the significant adverse impacts resulting, in general, from the use of bottom gears, nor does the absence of analysis by ICES and by the Commission of the detrimental impacts of passive gears constitute a breach of the principle of proportionality. Finally, since the specific type of fishing gears used, whether mobile or passive, does not determine the designation of those areas, nor can the argument that the absence of such an analysis is discriminatory succeed.
With regard to the methodology used to determine the specific VME areas, the Court found no infringement of the basic regulation or of the principle of proportionality. The choice of methodology falls within the broad discretion enjoyed by the Commission as regards the application of the criteria for establishing the list of those areas. In the present case, there is no evidence to suggest that the Commission manifestly exceeded its discretion in using the methodology taken into account by ICES in its advice, or that the Commission has not used the best available scientific and technical information.
In the second place, the Court rejects the objection of illegality raised by the applicants. On the one hand, the applicants rely on an infringement of Article 291 TFEU in that Article 9(6) of the basic regulation refers to an implementing act to supplement its essential elements. On the other hand, they claim that the indiscriminate prohibition on fishing with any bottom gears in VME areas provided for in Article 9(9) of that regulation infringes CFP rules, the principle of proportionality and a possible obligation to provide specific reasons for the choices made.
With regard to the question whether Article 9(6) of the basic regulation makes reference to an implementing act in order to supplement its essential, or even non-essential, elements, it should be noted that the implementing acts referred to by that provision merely specify the VME areas and thus give concrete expression ratione loci to the protection regime for VMEs adopted by that article. In that regard, the essential elements concerning the definition of and criteria for identifying a VME, the VME indicators and the procedure for establishing the list of such ecosystems are already set out in Article 9 of the basic regulation.
Consequently, the Commission established the list on the basis of sufficiently clear and precise substantive criteria for VMEs, and according to a procedure also defined by the basic regulation, while at the same time enjoying a measure of discretion, in particular when establishing the precise methodology for applying the criteria laid down by the legislature. Moreover, the Commission was acting within the framework of its powers to implement and not to manage the CFP. In that context, it could take into account elements relating to the fishing operations carried out in order to assess the likelihood of the (continued) presence of VMEs.
As regards the indiscriminate prohibition imposed by Article 9(9) of the basic regulation, without taking into account, in particular, its economic and social impact, it follows from Regulation No 1380/2013 that the long-term environmental sustainability of fishing activities involves minimising the impacts of those activities on the marine ecosystem, by applying the precautionary approach to fisheries management as well as the ecosystem-based approach.
In the balancing of the interests involved, which is inherent in the adoption of measures for the conservation of marine biological resources, the legislature enjoys broad discretion. Its choice to adopt such measures is subject to a review by the EU judicature which must be confined to ascertaining whether the measure in question is vitiated by a manifest error or misuse of power or whether the legislature has clearly exceeded the bounds of its discretion. The legislature is not required to carry out a specific and reasoned weighing up of the interest of protecting the marine environment against the interests of persons engaged in fishing activities and the socioeconomic aspects of those activities. In the context of technical measures, the author of the measure is not required to provide a specific statement of reasons for its choice if the contested measure clearly discloses the essential objective pursued, as in the present case.
In the Court’s view, it has not been demonstrated that the legislature has clearly exceeded the bounds of its discretion. In particular, the applicants have not provided sufficiently precise and convincing evidence to establish that passive gears were free of adverse impacts on VMEs, thereby excluding, in an ecosystem-based and precautionary approach, the risk, supported by the scientific literature, that those fishing gears pose to VMEs, particularly during their repeated deployment and retrieval.
In view of the foregoing, the EU legislature, exercising its broad discretion in the matter, could consider it necessary, in order to avoid the risk of harmful effects of passive gears, notwithstanding the likely adverse socioeconomic effects, to prohibit fishing with bottom gears in general in VME areas.
(
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)	Commission Implementing Regulation (EU) 2022/1614 of 15 September 2022 determining the existing deep-sea fishing areas and establishing a list of areas where vulnerable marine ecosystems are known to occur or are likely to occur (OJ 2022 L 242, p. 1).
(
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)	Regulation (EU) 2016/2336 of the European Parliament and of the Council of 14 December 2016 establishing specific conditions for fishing for deep-sea stocks in the north-east Atlantic and provisions for fishing in international waters of the north-east Atlantic and repealing Council Regulation (EC) No 2347/2002 (OJ 2016 L 354, p. 1).
(
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)	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).
(
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)	Council Regulation (EC) No 734/2008 of 15 July 2008 on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears (OJ 2008 L 201, p. 8), and in particular Article 2(b) to (d) thereof, concerning the concepts of ‘VME’, ‘significant adverse impacts’ and ‘bottom gears’.