Provisional text
OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 5 March 2026 (1)
Case C‑194/24
Italian Republic
v
European Parliament,
Council of the European Union
( Action for annulment – Common fisheries policy – Control of the landing obligation – Regulation (EU) 2023/2842 – Installation of surveillance cameras on fishing vessels – Infringement of Articles 7, 8 and 31 of the Charter of Fundamental Rights – Proportionality – Intensity of review )
I.      Introduction
1.        Traditionally, unwanted or (commercially) uninteresting catch was thrown back into the sea. (2) At this point, however, the fish or marine life at issue were likely already dead or dying. (3)
2.        The ‘landing obligation’ was introduced by the Common Fisheries Policy (‘CFP’) Regulation (4) to reduce the wastefulness that had been prevalent in commercial fishing for decades and, in turn, to contribute to a more sustainable fisheries policy. In essence, that act requires that all catch be retained and recorded on board the fishing vessels at issue, and then landed. (5) For that reason, the landing obligation has been described as ‘a very big change in fisheries management’ and ‘a reversal of traditional fisheries management, turning it on its head’. (6)
3.        The present case concerns the control of that landing obligation. In order to ensure effective compliance therewith, Regulation
(EU) 2023/2842 (7) (‘the contested regulation’) introduced the requirement that certain fishing vessels should be equipped with remote electronic monitoring (REM) systems, including closed-circuit television (CCTV) cameras.
4.        The Italian Republic considers that the installation of such cameras
constitutes a disproportionate interference with various provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’).
5.        I shall propose that the Court dismiss those concerns
as unfounded.
II.    Background and legal framework
6.        The objective of the common fisheries policy (CFP), as revised through the CFP
Regulation, is to ensure that the exploitation of living aquatic resources, including fish, takes place in a way that provides sustainable economic, environmental and social conditions. (8)
7.        That, however, cannot occur without effective control measures.
8.        In 2007, the European Court of Auditors highlighted the vast deficiencies inherent in the European Union’s fisheries control system in force at the time. (9) Those measures were revised in 2009 with the entry
into
force of Regulation (EC) No 1224/2009 (‘the Fisheries Control Regulation’). (10)
9.        That new fisheries control system is composed of output and input measures.
Output measures are in essence designed to limit the overall catch through what is called ‘fishing effort management’, which includes the attribution of shares of stocks for each species of fish in EU
waters (‘total allowable catch limits’) and of quotas to each fishery. Input measures concern the means and rules pursuant to which a fishing fleet engages in fishing, be it through controls of its fishing capacity and vessel use, technical measures governing fishing gear, or through the allocation of time periods and geographical areas during and within which fishing may occur. (11)
10.      In 2015, that system of fisheries controls was adapted to take account of the entry
into
force of the CFP
Regulation, and in particular of the introduction of the landing obligation. (12)
11.      While recognising that the system
in place since the introduction of the CFP
Regulation represented progress and that Member States were implementing the fisheries management measures adequately, the Court of Auditors,
in its Special Report No 08/2017, nonetheless considered that ‘the [European Union] does not yet have a sufficiently effective system for fisheries controls in place to support the success of the CFP’. (13) Thus, one of the recommendations made in that report was for Member States to improve the reliability of catch data, particularly given the ‘significant discrepancies between declared landings and subsequent records of first sale’. (14)
12.      Similar suggestions were echoed in a 2016
resolution by the European Parliament (15) and a 2017 evaluation by the European Commission. (16)
13.      Accordingly, in 2018, the Commission published a proposal for what would become the contested regulation. (17) That document was accompanied by the Impact Assessment; (18) both documents highlight the inadequacy of fisheries and catch data. (19)
14.      The contested regulation is based on Article 43(2) TFEU. That provision provides for the ordinary legislative procedure for the adoption of legislative acts in the field of fisheries, therefore
enabling
the EU
legislature to lay down policy decisions concerning the measures establishing and managing the CFP.
15.      Article 1(10) of the contested regulation
replaces Article 13 of the Fisheries Control Regulation. As replaced, Article 13(1)
lays down the obligation for the Member States to ensure monitoring and control of fishing activities through REM systems. (20) Article 13(2) thereof, as replaced, now mandates that
Member States, for the purpose of monitoring and control of the landing obligation, ‘ensure that [EU] catching vessels of 18 metres in length overall or more flying their flag which pose a high risk of non-compliance with the landing obligation have installed on board an operating REM system’. It also explains that ‘the REM system shall be able to effectively monitor and control compliance with the landing obligation, shall include CCTV and may include other instruments and/or equipment. The master [of the fishing vessel] shall ensure that the data from the REM system are made available to competent authorities. The competent authorities of the flag and coastal Member States responsible for fisheries control shall have equal access to those data, without prejudice to the relevant rules on the protection of personal data.’
Article 13(3), as replaced, empowers the Commission to adopt implementing acts to define the scope and detail of application of the above obligations. (21)
16.      Recital 24 of the contested regulation both explains the motives
which underlie
the
newly introduced obligation and, recognising its interference with the right to privacy and data protection, outlines the measures for minimising such interference. In that respect, the EU
legislature
states that ‘in order to ensure the effectiveness of the [EU] fisheries control system, in particular as regards the monitoring of compliance with the landing obligation, it is necessary to equip, on the basis of a risk assessment, certain catching vessels with [REM] systems on board. Those systems should include [CCTV] cameras. CCTV data should not be live-streamed. In order to safeguard the right to privacy and the protection of personal data, recording of video material through CCTV should only be allowed in relation to the gear and those parts of the vessels where fishery products are brought on board, handled and stored or where discarding can occur. Recording activity should be limited to those situations where gear is actively operated, such as the shooting of gear or hauling or removing gear from the water, and where catch is taken on board and handled by the crew or where discarding can occur. The possibility to identify individual persons in the recorded video material should be limited to the extent possible, and where necessary the data should be anonymised. To ensure clarity and consistency, rules on access by competent authorities to data from those REM systems should be set out. Footage from CCTV should be made available exclusively for the purposes of control and inspection set out in [the Fisheries Control Regulation], to the authorities specified in that Regulation.’
A.      Procedure before the Court
17.      By application lodged at the Registry of the Court of Justice on 11 March 2024, the Italian Republic brought the present action.
18.      It claims that the Court should annul the contested regulation and order the Parliament and the Council of the European Union to pay the costs.
19.      The Parliament and the Council contend that the Court should dismiss the action as unfounded and order the Italian Republic to pay the costs.
20.      By decision of the President of the Court of 8 July 2024, the Commission was granted leave to intervene in support of the form of order sought by the Parliament and the Council.
21.      Written submissions have been received from the Italian Republic, the Parliament, the Council and the Commission.
A hearing was held on 22 October 2025, at which those parties also presented oral argument.
III. Analysis
22.      The Italian Republic bases its action for annulment on two pleas in law. The Court has asked me to limit my analysis to the first plea. (22)
A.      The first plea in law
23.      The first plea is directed against Article 1(10) of the contested regulation. (23) To recall, that provision introduces an obligation for the Member States to enable monitoring and control of the landing obligation through REM
systems which, for vessels at least 18 metres in length (24) and which pose a high risk of non-compliance with the landing obligation, must
include CCTV
cameras and may also include other instruments and/or equipment.
24.      The Italian Republic considers that the EU
legislature’s choice to mandate the installation of such CCTV
cameras
for certain vessels constitutes a disproportionate limitation of three of the rights protected by the Charter: the right to respect for private and family life (Article 7), the right to the protection of personal data (Article 8), and the right to fair and just working conditions (Article 31). Accordingly, that obligation on Member States infringes Article 52(1) of the Charter. (25)
25.      The Parliament and the Council, supported by the Commission, dispute those arguments.
B.      The appropriate intensity of judicial review
26.      A preliminary issue, discussed at the hearing, relates to the intensity of the judicial review to be exercised by the Court when the compatibility of an EU legislative measure with Charter-protected rights is at issue.
27.      In its application, the Italian Republic considers that
the assessment of the proportionality of a legislative measure which interferes with the right to privacy and data protection requires a high intensity of review by the Court. In that respect, that party
relies on case-law in which the Court has insisted that a measure interfering with Articles 7 and 8 of the Charter must be ‘strictly necessary’ for the attainment of the objective it pursues. (26) Accordingly, the Italian Republic, in essence, asserts that, in order to strike an appropriate balance between the objectives being pursued by the measures at issue and the fundamental rights at play, the Court must perform a proportionality assessment that covers all three levels of proportionality; that is to say, appropriateness, necessity and proportionality stricto sensu. Additionally, that party argues, in essence, that each step requires a high intensity of review by the Court.
28.      By contrast, the Parliament, the Council and the Commission consider that the Court need merely verify whether the measure at issue is
‘manifestly inappropriate’ in view of the objective that the EU
legislature is seeking to pursue.
In that respect, the Commission relies on the judgment in
Italy v Council (Fishing quota for Mediterranean swordfish), in which the Court held that ‘as regards judicial review of the implementation of [the principle of proportionality], bearing in mind the wide discretion enjoyed by the [EU] legislature where the [CFP] is concerned, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue. What must be ascertained is, therefore, not whether the measure adopted by the legislature was the only one or the best one possible but whether it was manifestly inappropriate’. (27)
29.      Neither of those positions is, in principle, incorrect. Both lines of case-law chosen by the parties concern the intensity of judicial review applicable to the implementation of the principle of proportionality by the EU
institutions when they adopt legislative measures.
30.      To start with, by virtue of Article 5(4) TEU, under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.
31.      When such Union action consists of the adoption of legislative measures, through which the policies envisaged by the Treaties are ‘brought to life’, the EU
legislature, in principle, enjoys
wide discretion in choosing the means it considers appropriate. (28) The Court has already confirmed that such wide discretion also exists in the area of the CFP. (29)
32.      However, that legislative discretion is not unlimited. First, it must be exercised within the limits of what is generally permitted by the objectives both of the Treaties and of the particular policy, as set out in the Treaties. Second, the principle of proportionality requires that ‘acts adopted by EU
institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question[, which means that]
where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued’. (30)
33.      The latter statement indicates that, in the Court’s view, the
EU legislature
must respect
all three levels of the proportionality assessment when it adopts legislation: that is to say,
that the measure chosen is appropriate and necessary for the objective it pursues, that other interests were given due regard,
and that those other interests are not overly burdened by the chosen measure.
34.      However, when the Court reviews the implementation by the EU
legislature
of the principle of proportionality, it considers that it should verify only whether ‘the measure is
manifestly inappropriate having regard to the objective which the competent
institution intends to pursue’. (31) In order to establish whether that is so, the question the Court has to ask is, therefore, ‘not whether the measure
adopted by the legislature was the only one or the best one possible but whether it was manifestly
inappropriate’. (32) The Court has repeated that statement on the limits
of its own powers of judicial review also in relation to measures in the area of the CFP. (33)
35.      Therefore, in principle, in the review of legislative EU
measures, proportionality means, in effect, ‘substantive rationality’ of the choice taken by the EU legislature.
36.      To that end, the Court must ask itself whether the EU legislature’s substantive response to a particular policy challenge corresponds to one of the options open to a reasonable decision-maker. Where the Court is satisfied that the desired legislative result could be obtained on the basis of the chosen measure, it will not question that choice further.
37.      Nevertheless, the EU
legislature must be capable of demonstrating to the Court that it took into consideration any
impact on the interests of the various stakeholders affected by that measure, and that it examined whether ‘the aims pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators’. (34) That obligation is clarified in Article 5 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the EU Treaty and the FEU Treaty, which, as the Court has explained,
requires that ‘draft legislative acts must take account of the need for any burden falling upon economic operators to be minimised and commensurate with the objective to be achieved’. (35)
38.      Thus, the Court’s deference to the EU
legislature in relation to the substantive choices it has made is counterbalanced by a review of the ‘procedural proportionality’ of the measure at issue. (36)
39.      Judicial deference to the substantive choices made by the legislature is linked to
the separation of powers in a democratic society: it is the electorate, and not the courts, that renders ‘judgment’ on the policy choices made by the legislature and that holds
it accountable
for what it may or may not have gotten wrong when balancing
the public and the private interests inherent in a particular policy issue.
40.      That being said, the EU
legislature’s discretion in the choice of the appropriate measures is significantly narrower
where the chosen measure interferes with the fundamental rights protected by the Charter. (37)
41.      Article 52(1) of the Charter lays down that any limitation on the exercise of a right or freedom recognised therein is subject to the principle of proportionality.
42.      In applying that ‘emanation’ of the principle of proportionality as expressed in the Charter, the Court’s
review ordinarily consists of
one of all three levels of the proportionality assessment. (38) In other words, it does not limit its power of review to the manifest inappropriateness of the choices underlying that measure. Rather, and at least in relation to an interference with certain fundamental rights, (39) such as the right to privacy and data protection, the Court conducts a high-intensity
review of the proportionality of that interference. (40)
43.      In that respect, the Italian Republic is correct when it relies on the judgment in Luxembourg Business Registers  to establish the need for a high intensity of review by the Court in the present case. (41)
44.      Indeed, in its ‘rights-protecting emanation’, the principle of proportionality demands such a high intensity of review. (42)
45.      First and foremost, that means that the EU legislature
bears the burden of proving that its substantive choices satisfy the constitutional protection afforded to the rights in question and are commensurate with the importance of the objective pursued.
46.      That obligation
on the EU
legislature
to defend its substantive choices before the Court is triggered if the party that challenges a legislative measure is able to
demonstrate that that measure interferes with one or more fundamental rights. In that respect, I would agree with the Parliament’s position that not all allegations of fundamental rights breaches
automatically trigger a ‘strict’ review by the Court of that
legislative measure.
Rather, there must always be a genuine link between the measure at issue and the alleged breach of the
Charter-protected right or principle. (43) That is why, in a proportionality assessment of a measure that allegedly breaches a fundamental right, the Court must first verify whether that measure is at all capable of interfering with that right.
47.      Finally, the reason for a less deferential, and therefore more intrusive, review of EU
legislative measures in the case of an interference with fundamental rights
lies in the particular role that the rights protected by the Charter play in a liberal, democratic society: one where meaningful democratic governance is circumscribed by certain foundational legal rules which cannot be undermined at will, even in the face of democratic decision-making.
48.      It is only through
a
strict review of the EU legislative
measure interfering with fundamental rights that the Court can defend the value of democracy, as expressed in Article 2
TEU. Democracy, as understood in the European Union, goes beyond the decision-making of the democratically elected majority; it requires the protection of the rights of minorities that are part of European society. That counter-majoritarian role of the courts has become even more important in today’s world, in which autocratic governments endeavour to enhance and preserve their power by revoking the rights of minorities and, more generally, of anyone who opposes their choices, justifying their action through the portrayal of democracy as a rule of the elected majority. That is also the reason why those autocratic governments first set out to curtail the independence of the judiciary.
49.      The present case raises the concern that the contested regulation disproportionately interferes with certain fundamental rights protected by the Charter; more particularly, the rights to privacy, to the protection of personal data and to
fair and just working conditions. The
Italian Republic
seeks a review of
the legality of the changes to the Fisheries Control Regulation brought about by the contested regulation against the yardstick of the Charter. That requires
that the Court’s proportionality assessment of any potential interference with the rights protected therein be strict. It is to that assessment that I will now turn.
C.      The installation of CCTV cameras on fishing vessels does not disproportionately interfere with Articles 7, 8 and 31 of the Charter
50.      By its first plea in law, the Italian Republic, in essence, alleges an
infringement
of Article 52(1) of the Charter. It considers that the obligation to install CCTV
cameras on certain types of fishing vessels constitutes a disproportionate limitation on
the rights expressed
in Articles 7, 8, and 31 of the Charter. According to that party, the installation of such cameras results in a manifest and unreasonable interference with the right to privacy of persons on board such vessels, the right to the protection of their personal data, and their right to working conditions which respect their dignity. That is because, through the installation of said cameras, those persons would run the risk of being identified. While the Italian Republic accepts that those measures pursue a legitimate objective, it considers that a less restrictive and, in its view,
an even more effective measure was available to the EU
legislature in the form of the use of observers. Therefore it is alleged that, in its current form, that measure constitutes a ‘manifestly’ (44) disproportionate interference with the fundamental rights of persons and workers aboard fishing vessels.
51.      The Parliament and the Council, supported by the Commission, dispute those arguments.
1.      Applicability of Articles 7 and 8 of the Charter
52.      As explained above, when faced with an allegation of the breach of a fundamental right,
the first question the Court should ask is whether the measure at issue is of the kind that is capable of interfering with the right at issue. If so, the standard of review to be conducted by the Court requires
strict scrutiny.
53.      Is the obligation to introduce CCTV
cameras on board certain fishing vessels capable of interfering with the fundamental rights relied on by the Italian Republic? I will begin by considering
Articles 7 and 8 of the Charter.
54.      Article 7 thereof guarantees that the private and family life of a person
is respected. Article 8(1) of the Charter protects one aspect of private and family life
that has become especially sensitive in the digital era; that is, it expressly confers on everyone the right to the protection of their personal data.
55.      The Parliament, the Commission and the Council, in essence, dispute that those rights are implicated by the measures at issue in the main proceedings. They argue that the design of those measures is such that no infringement of Articles 7 and 8 of the Charter may arise in the first place: for example, the installation of the cameras at issue only concerns certain (high-risk) vessels; recording is to be kept to a minimum and is to be limited only to those areas of the vessel where fishery products are brought on board, handled and stored, or where discarding can occur; and all recordings are anonymised ‘as soon as possible’.
56.      The
Italian Republic
considers that, even in the light of the technical and legal measures intended to limit the use of the cameras at issue, there still remains the risk that a person might be identified. That alone, it alleges, should trigger the application of right to the protection of privacy and personal data.
57.      I agree with the position of the Italian Republic.
58.      Protecting the right to privacy is not a game of probability. Every person holds unique characteristics that distinguish that person from his or her peers. (45) Even in the face of the obligations imposed on the Commission to put in place means to anonymise –
by design (46) –
recordings of the cameras at issue, it cannot be excluded that workers aboard the vessels concerned are captured on video footage and may be identified. A person thus captured thereby loses the right to control their image, (47) which triggers their right to data protection.
59.      Albeit unlikely, it equally cannot be excluded that, as the Italian Republic explains, the ‘mechanical voyeur’ aboard those vessels
may record a private conversation or situation between two fishermen during the processing of a day’s catch, thereby interfering with their private lives. (48)
60.      Therefore, by the very fact that CCTV
cameras are installed on
board the vessels at issue, there is
the possibility of an interference with Articles 7 and 8 of the Charter
in so far as there remains the chance, however remote, that through the provision of said recordings persons on those vessels may be identified. The fact that not all vessels (but only those over 18 metres in length and posing a high risk of non-compliance with the landing obligation) are captured by the measure makes
no difference in that respect. The measure at issue is capable of interfering with the privacy rights of those working on such vessels and must therefore be justified to maintain its lawfulness.
61.      The measure at issue therefore falls within
the scope of fundamental rights protection afforded by Articles 7 and 8 of the Charter.
2.      Applicability of Article 31 of the Charter
62.      Article 31(1) of the Charter lays down the
right to respect for fair and just working conditions, including a worker’s health, safety and dignity.
63.      The Parliament, the Council and the Commission, in essence, highlight that it is not immediately clear why there is any interference with those rights in the present case.
64.      In response, the Italian Republic explains that working under video surveillance introduces a ‘penetrating control’ that does not respect the ‘dignity’ component of Article 31(1) of the Charter.
65.      In my view, both lines of argument have some merit.
66.      On the one hand, it appears to me that Article 31(1) of the Charter, read in the light of the Explanations relating to the Charter, (49) is primarily concerned with the physical and mental integrity of workers. Viewed from that angle,
it is difficult to see how the right
to
‘dignified’ working conditions extends to the targeted recording of activities during actual working time (as opposed to during breaks in the vessels’ galleys or cabins). (50) In an industry characterised
by declining catch, strict regulatory requirements, and a pay system often linked to the amount of fish caught during each voyage, (51) the use of cameras may in fact be viewed as a factor
in favour of the protection
(and therefore the dignity) of workers against exploitation. If that line of thought
were followed, no limitation of Article 31(1) of the Charter would be present.
67.      On the other hand, dignity in the workplace, as protected by Article 31(1) of the Charter, is possibly
the foundational value of social labour rights. (52) Human dignity at work acts as the counterweight to the asymmetry of power that is characterised by the possibility for the constant control of employees’ conduct at their workplace. It is clear that one way of exerting such control is through video surveillance.
68.      In that sense, it is unavoidable that an interference with the right to dignity at the workplace caused by the existence of CCTV
cameras overlaps with the rights to privacy and data protection. That does not exclude the applicability of Article 31(1) of the Charter to measures that affect privacy at the workplace.
69.      The case-law of the European Court of Human Rights (ECtHR) has to a certain extent recognised the right to dignity at work as a category of the right to privacy, guaranteed under Article 8 of the European Convention on Human Rights (ECHR). (53) From that angle, the Italian Republic is certainly correct in its assertion
that the installation of video cameras
in itself
interferes with an employee’s right to working conditions which respect their dignity, and so must be subject to a proportionate response by reference to a legitimate objective. (54)
70.      Finally, and contrary to what the Commission
explained at the hearing, for the purposes of deciding whether or not Article 31(1) of the Charter is at all implicated, it is irrelevant that the contested regulation specifically provides for legal and technical limitations to that surveillance.
Just like in relation to the alleged interference with Articles 7 and 8 of the Charter, those elements
enter the Court’s analysis only at the point of assessing the proportionality of any
limitations to that right.
They do not, however, limit the scope of application of Article 31(1) of the Charter.
71.      I therefore propose that the Court find that the measure at issue falls within the scope of application of Article 31(1) of the Charter.
3.      Proportionality
72.      Having concluded that the measure at issue falls within the scope of application of Articles 7, 8 and 31 of the Charter by interfering with the rights provided for therein, I will now proceed to an assessment of the proportionality of those measures.
Legitimate aim
73.      An interference with a fundamental right can be justified on the ground that it pursues a legitimate aim in a proportionate manner. Thus, the first question the Court should ask is whether the measure at issue
has an aim that can be recognised as legitimate.
74.      As the recitals of the contested regulation explain, the EU
legislature considered that the successful implementation of the CFP as a whole, and the effectiveness of the landing obligation as part of that overall matrix, inter alia requires the use of an effective, efficient, modern and transparent system of control. (55)
75.      In the present case, it is uncontested that the landing obligation, as part of the CFP
and the need to ensure the effective implementation of that obligation, constitutes a legitimate aim. (56)
76.      Even the Italian Republic, the party that has initiated the present proceedings, agrees that the installation of video surveillance
cameras on board the vessels at issue pursues a legitimate
aim: that of ensuring compliance with the landing obligation in order to achieve the objectives of the CFP.
77.      There is therefore no reason why the Court would not accept that objective as legitimate.
Appropriateness
78.      The appropriateness test, as part of the proportionality assessment, seeks to determine whether the measure at issue is capable of achieving the desired aim.
79.      In the present case, as in relation to the legitimate aim itself, none of the parties contest the appropriateness of the use of REM
systems, including CCTV
cameras,
to enhance compliance with the landing obligation.
80.      It arises from the case file that, according to a report by the European Climate, Infrastructure and Environment Executive Agency, the control of discards and the price and detailed monitoring of each fishing trip constitute one of the main risks for the implementation of the landing obligation. That agency therefore recommended focusing control on the activity at sea rather than at the time of landing. (57)
81.      Furthermore, according to the Impact Assessment, the introduction of REM
systems
involving cameras has ‘demonstrated the potential to be an effective means to ensure control and enforcement of the landing obligation and provide a deterrent to illegal discarding’. (58)
82.      There is, thus, no reason for the Court to doubt the appropriateness of the obligation to install CCTV
cameras on board certain fishing vessels for the purposes of decreasing the volumes of fish caught but not landed:
there clearly exists a sufficient link between such a monitoring system and the effectiveness of the landing obligation. (59)
83.      The EU legislature was therefore entitled to take the view that the introduction of the obligation to install said cameras is appropriate for attaining the objective pursued by it.
Necessity
84.      The main claim of the Italian Republic
is that the measure at issue is not necessary.
85.      In the proportionality assessment, a measure is deemed not to be necessary if there exists an alternative measure that is less restrictive (in the present case,
on the three fundamental rights at issue), but which can still achieve the same legislative objective.
86.      In the view of the Italian
Republic, there exists a less restrictive but equally effective measure: the use of human observers on board the fishing vessels at issue. In that party’s view, such a measure is possibly even more efficient than the installation of CCTV
cameras, as an observer could interact with workers and prevent potential breaches of the landing obligation from arising in the first place, while the use of video surveillance can only police the landing obligation after the fact. Furthermore, as the Italian Republic explains, the expenditure involved in the use and operation of video surveillance equipment was not sufficiently taken into account in the adoption of the contested regulation.
87.      In principle, in the context of a ‘strict’ proportionality assessment, and contrary to what the Council asserts, the burden of proof to show that there existed no alternative measures that could achieve the same results
rests with the EU
legislature. In other words, it does not fall on the Italian Republic to disprove
the necessity of the means chosen by the EU
legislature, but rather on the latter to prove
the
necessity of those means.
88.      Thus, the EU
legislature
must demonstrate that it took into consideration alternative measures and that it ultimately found that those measures were incapable of reaching the intended legislative result. Given that the Italian Republic
has
adduced arguments in favour of using observers rather than
REM
systems, including CCTV
cameras, it necessarily falls on the EU
legislature
to rebut those arguments in order to prove the legality of its legislative choice in the face of a claim of an unjustified interference with Charter-protected rights.
89.      In that respect, the EU
legislature –
that being the Parliament, the Council and the Commission in the present case – explains that the use of observers was indeed one of the means considered during the legislative process to ensure the effectiveness of the landing obligation. (60) After all, recourse to that possibility has existed in EU
law since 2015. (61) That being said, the compromise adopted by the Member States in the Council resulted in the favouring of the obligation to use REM
systems, including CCTV
cameras. (62)
90.      In support of that choice, the Parliament, the Council and the Commission all point to the Impact Assessment, which explains at length the advantages of surveillance cameras and dismisses the use of observers as an equally effective
means of achieving the objective pursued. (63)
91.      That document notes that ‘the possibility to require for the presence of observers on board was initially considered as it may lead to a number of benefits, including the promotion of compliance with the landing obligation at sea, the definition of a more flexible control measure rather than closed-circuit television (CCTV) cameras without an initial capital outlay. Nonetheless, this alternative was discarded for a number of reasons: (i) it would be necessary to employ a far larger number of observers in rotating shifts to ensure 24-hour coverage; (ii) small fishing vessels would not have sufficient room to host observers, especially during long trips; (iii) the costs incurred by employing observers on many fishing vessels would be disproportionate to the results one might get (e.g. the need for two observers to be awake throughout fishing operations may result in over €2000 per day …; average cost of €5000/month per observer incurred in the NAFO observer programme); and (iv) while recognising the feasibility of costs incurred by employing observers only on those vessels deemed with a high risk of non-compliance, such option would lead to a disproportionate gap in control on other vessels that could hardly be justifiable.’ (64)
92.      In addition, the Parliament explains that the continuous and systematic nature of REM
systems, including CCTV
cameras, cannot be matched by the presence of onboard observers, given that the latter cannot ensure constant vigilance of all aspects of a given
vessel. (65)
93.      In that respect, however, the Italian Republic, in essence, explains that the installation of CCTV
cameras presents a systematic
risk of exposure to video recording, and thus
constitutes a more intrusive measure in relation to
Articles 7, 8 and 31 of the Charter than ad hoc or specifically timed recordings.
94.      While that may well be the case, as the Parliament, the Council and the Commission have explained, should the operation of the CCTV
cameras at issue be limited to only certain times of the day, the discarding of unwanted aquatic resources, including fish, would simply occur during the period when the cameras at issue would be turned off. Therefore, ad hoc recordings, even if less intrusive, cannot be understood as an equally efficient alternative.
95.      In view of the above explanations, I consider it clear from the legislative file, the documents adduced to the Court and the explanations of the parties that the EU
legislature
both considered the various
means which could achieve the legislative aim pursued by it and
weighed their efficacy as regards the objective pursued, but ultimately dismissed those alternative means as less capable of achieving the objective pursued by its measure.
96.      Therefore, in my view, the EU
legislature has provided sufficient arguments to demonstrate that the use of observers
does not constitute an equally efficient means for controlling the landing obligation.
The balancing exercise
97.      The
third level of the proportionality assessment, often referred to as ‘proportionality stricto sensu’ or simply ‘balancing’, requires the EU
legislature to show that the negative effects
caused by the measure at issue
are not disproportionate to the
benefits that the legislation aims to achieve.
In other words, for this test, the Court must assess whether a measure that has been proven to be necessary for the achievement of a given legitimate aim is nevertheless unlawful on account of the ‘cost’ for achieving the chosen aim being too high. (66)
98.      When a challenge to the validity of a legislative measure concerns an interference with Charter-protected rights, which requires, as I have explained above, strict scrutiny by the Court, the review of that measure through a balancing exercise is necessary even where
there is no less restrictive alternative. (67)
99.      For the purpose of that
balancing exercise, the Court must, inter alia, take into consideration the seriousness of the interference with the fundamental rights at issue, on the one hand, and the importance of the aim that the measure intends to achieve, on the other. (68)
100. For the purposes of the present case, the proportionality assessment thus consists of a scale weighing up, on one side,
the adverse effects arising from the measure at issue on the fundamental rights at stake against the resulting benefits to be achieved by
the effective control of the landing obligation, on the other side.
101. In that respect, the Parliament, the Council and the Commission
correctly point out that the proportionality assessment of the measure at issue must take into consideration its entire design. Therefore, it is relevant not only that the EU
legislature opted for the use of REM
systems, including CCTV
cameras, but also that it provided for their use in a way that minimises the level of interference with the Charter-protected rights at issue. (69)
102. In respect of the first part of the balancing exercise,
which relates to the adverse effects produced by the measure at issue, the Parliament, the Council and the Commission highlight several measures intended to alleviate the interference with the rights protected by Articles 7 and 8 and Article 31(1) of the Charter.
103. First, those parties
indicate that the obligation to install CCTV
cameras is limited to fishing vessels of an overall length equal to or greater than 18 metres, and then only
to those vessels that fit that scheme and present a high risk of non-compliance with the landing obligation. (70)
104. Second, they observe that said cameras are to be installed in such a way that they record only the gear and the parts of the vessel where fishery products are brought on board, processed and stored,
and
the areas where they may be discarded. (71) At the hearing, the Council further explained that a higher degree of precision (in the legislative text) as regards
the place of installation of those cameras was not possible given that the precise location where those activities are carried out differs from vessel to vessel.
105. Third, the three institutions highlight that only the master of the fishing vessel at issue and the competent authorities of the flag and coastal Member States responsible for fisheries control are capable of accessing the recordings of those cameras, and that such access must occur in line with the rules on data protection.
106. Fourth, it is envisaged that additional rules on the storage of, exchange of and access to the REM systems would be set out. (72)
107. Fifth, the institutions underline that the contested regulation obliges the Commission to lay down, and the competent authorities to implement, measures which result in the anonymisation of any persons identifiable
in the footage collected by a CCTV
camera
‘as soon as possible’. (73) There is therefore, in principle, no retention period of data that allows persons to be identified. (74)
108. The above shows that the EU
legislature sought to introduce measures aimed at minimising the interference by the installation of CCTV
cameras with the fundamental rights at play.
109. In our metaphoric scale balancing the adverse consequences arising from those measures against their benefits, the burden on the negative side is therefore lightened.
110. As regards the benefits side of that balancing exercise, the institutions first of all recall that the system put in place by the EU
legislature is
geared towards monitoring the landing obligation, not identifying or controlling individual persons.
111. Second, the measures at issue are put in place after many years of severely depreciating fish stocks in a context in which other measures, including the possibility for recourse to observers, were
incapable of ensuring the sustainable use of the European Union’s fisheries resources.
112. Third, and most importantly, that system serves the recognised and important objective of ensuring that the exploitation of living aquatic resources, including fish, takes place in a way that provides sustainable economic, environmental and social conditions. In that respect, the Commission explained at the hearing that it is crucial to have the correct amount of fish that is caught in order to determine the means and rules pursuant to which a fishing fleet engages in fishing. (75) The incorrect determination of those means and rules, including fishing quotas,
may otherwise lead to overfishing and ultimately to the disappearance of certain species of fish.
113. Contrary to the claim of the Italian Republic, I consider that the legislative objective
that the EU
legislature sought to achieve through the effective control of the landing obligation is of high importance, not only for the EU
fisheries policy, but also for the economic, social and environmental objectives of this and other EU
policies.
114. The benefit to be achieved by the introduction of REM
systems, including CCTV
cameras,
is therefore significant and weighs heavily on the positive side of our metaphoric scale.
115. In view of the above, the interferences
with the rights protected by Articles 7, 8 and 31 of the Charter through the use of REM systems, such as envisaged by the measure
at issue but also limited by it,
are not disproportionate to the benefit that the contested regulation aims to achieve.
116. For the above reasons, I consider that the EU
legislature satisfied Article 52(1) of the Charter by correctly balancing the objective pursued by the contested regulation with the potential of that legislation to restrict Articles 7, 8 and 31 of the Charter.
117. It follows that I consider that the Court should dismiss the Italian Republic’s first plea in law.
IV.    Conclusion
118. I propose that the Court dismiss the Italian Republic’s first plea in law.
1      Original language: English.
2      According to an estimate made in 2013, 1.7 million tonnes of fish and other marine animals were being discarded by EU fisheries each year. See ClientEarth et al., Joint NGO priorities on the revision of the EU Fisheries Control System, October 2018; available at: https://awsassets.panda.org/downloads/joint_ngo_position_paper_on_the_revision_of_the_eu_fisheries_control_system___october_2018.pdf.
3      See Library of the European Parliament, Discarding fish under the Common Fisheries Policy: Towards an end to mandated waste, Library Briefing, 13 May 2013, 130436REV1, p. 2, which explains that ‘most fish, particularly round fish, are usually dead or dying when thrown back at sea. Crustaceans or shellfish, and some shark or flatfish species, may have higher chances of being returned still alive, but assessing their actual long-term survival is very difficult. This has a direct impact on the stocks concerned.’
4      Regulation 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)
(‘the CFP Regulation’).
5      Article 15(1) of the CFP
Regulation, which introduces the landing obligation, reads as follows: ‘All catches of species which are subject to catch limits and, in the Mediterranean, also catches of species which are subject to minimum sizes … shall be brought and retained on board the fishing vessels, recorded, landed and counted against the quotas …’.
6      According to the oral evidence adduced by Samuel Stone, Head of Fisheries and Aquaculture of the UK
Marine Conservation Society, before the UK
House of Lords Select Committee on the European Union, 5 December 2018; available at: https://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-energy-and-environment-subcommittee/implementation-and-enforcement-of-the-eu-landing-obligation/oral/93810.html.
7      Regulation of the European Parliament and of the Council of 22 November 2023 amending Council Regulation (EC) No 1224/2009, and amending Council Regulations (EC) No 1967/2006 and (EC) No 1005/2008 and Regulations (EU)
2016/1139, (EU)
2017/2403 and (EU)
2019/473 of the European Parliament and of the Council as regards fisheries control (OJ
L, 2023/2842).
8      See Article 2(1) of the CFP
Regulation, which cites the objectives upon which the CFP is to operate.
9      See Special report No 7/2007 on the control, inspection and sanction systems relating to the rules on conservation of Community fisheries resources together with the Commission’s replies (OJ
2007 C 317, p. 1). The system examined in the Court of Auditors’s report was the one laid down by Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (OJ
1987 L 207, p. 1) and concluded that (i) catch data were neither complete nor reliable, with real levels of catch unknown, such that a proper application of total allowable catch and quota limits was not possible; (ii) the inspection systems in place did not provide assurance that infringements were effectively detected and prevented; (iii) the procedures in place for dealing with reported infringements neither ensured any follow-up nor imposed (deterring) penalties; and (iv) overcapacity detracted from the profitability of the fishing industry, in a context of decreased authorised catches, incited non-compliance with fishing restrictions.
10      Council Regulation of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ
2009 L 343, p. 1).
11      See, to that effect, European Court of Auditors, EU fisheries control: more efforts needed, Special Report No 08/2017
(‘Special Report No 08/2017’), paragraph 3; available at: https://www.eca.europa.eu/Lists/ECADocuments/SR17_8/SR_FISHERIES_CONTROL_EN.pdf.
12      Regulation (EU) 2015/812 of the European Parliament and of the Council of 20 May 2015 amending Council Regulations (EC) No 850/98, (EC) No 2187/2005, (EC) No 1967/2006, (EC) No 1098/2007, (EC) No 254/2002, (EC) No 2347/2002 and (EC) No 1224/2009, and Regulations (EU) No 1379/2013 and (EU) No 1380/2013 of the European Parliament and of the Council, as regards the landing obligation, and repealing Council Regulation (EC) No 1434/98 (OJ
2015 L 133, p. 1).
13      Special Report No 08/2017, paragraph 95.
14      Special Report No 08/2017, paragraph 99.
15      See European Parliament resolution of 25 October 2016 on how to make fisheries controls in Europe uniform (2015/2093(INI)) (OJ 2018 C 215, p. 143), recital H (on discrepancy of data) and point 33, explaining the ‘need for the collection, management and use of good-quality data regarding the landing obligation, in order to control and assess the effectiveness of the implementation of the landing obligation and to bring data collection into line with the requirements resulting from the revised CFP’. See also point 66 thereof, which ‘stresses the importance of electronic technologies (electronic reporting and electronic monitoring systems) which represent a potentially cost-effective means to widen observation of activities at sea’.
16      See Report from the Commission to the European Parliament and the Council – Implementation and evaluation of Regulation (EC) 1224/2009 establishing a Union control system for ensuring compliance with the rules of the common fisheries policy as required under Article 118 – REFIT – Evaluation of the impact of the fisheries regulation (COM(2017) 192 final), in which
the Commission concluded that the (then applicable) system was ‘not entirely fit for purpose’ and that stakeholders deemed it necessary ‘to better adapt the control system to the new CFP, addressing in particular the landing obligation’.
17      Proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1224/2009, and amending Council Regulations (EC) No 768/2005, (EC) No 1967/2006, (EC) No 1005/2008, and Regulation (EU) No 2016/1139 of the European Parliament and of the Council as regards fisheries control (COM(2018) 368 final)
(‘the Proposal’).
18      See Commission Staff Working Document –
Impact Assessment –
Accompanying [the Proposal] (SWD(2018) 279 final)
(‘the Impact Assessment’).
19      See the Impact Assessment, pp. 9 and 15, and the Proposal, p. 3.
20      See Article 13(1) of the Fisheries Control Regulation, as replaced by the contested regulation.
21      For completeness, I should add that paragraphs 4 and 5 of Article 13, as replaced, empower the Member States to extend the above measures to include vessels under 18 metres in length or to incentivise the voluntary use of such measures by vessels which are not under the obligation to use REM systems, and that paragraph 6 enables, but does not oblige, the Member States to provide for the use of an REM system for the control of compliance with other rules of the CFP. Those elements are, however, not relevant for the resolution of the present case.
22      In the second plea, the Italian Republic claims that Article 90 of the Fisheries Control Regulation, as introduced by Article 1(75) of the contested regulation,
infringes Article 3(3) TEU, Articles 101 and 120 TFEU and
Protocol No 27 on the internal market and competition. In essence, that party considers that the discretion left to Member States, as arising from the changes introduced by Article 1(75) of the contested regulation, to decide what constitutes a ‘serious infringement’ would lead to a distortion of the internal market as national authorities would favour their own vessels.
23      For more detail, see point 15 of the present Opinion.
24      At the hearing, the Commission explained that while vessels of that length represent only 6.8% of the total number of EU
fishing vessels, they account for 70% of all catch in the European Union.
25      In the header of its first plea in law, the Italian Republic also lists an
infringement of Article 52(2), (3) and (4) of the Charter and of Article 18 ECHR. Likewise, towards the end of its application, it appears to consider that the measure at issue unjustifiably compromises the protection of business
confidentiality. However, the Italian Republic
did not explain, either in its written observations
or at the hearing, how precisely those rules
are implicated by the changes brought about by Article 1(10) of the contested regulation. I accordingly consider that its case should be dismissed as inadmissible in so far as it concerns those elements for want of satisfaction of the requirements of clarity and precision, as reflected in Article 120(c) of the Rules of Procedure of the Court of Justice. See, to that effect, judgment of 15 November 2012, Commission v Portugal (C‑34/11, EU:C:2012:712, paragraph 44 and the case-law cited).
26      In that respect, the applicant refers to the judgment of 22 November 2022, Luxembourg Business Registers (C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 66), in which the Court considered that it must assess ‘whether the interference with the rights guaranteed in Articles 7 and 8 of the Charter which results from such access is limited to what is strictly necessary’.
27      Judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish) (C‑611/17, EU:C:2019:332, paragraph 56).
28      The Court has had the opportunity to confirm that wide (legislative) discretion in, inter alia, the areas of the common agricultural policy (see, for example, judgment of 7 September 2006, Spain v Council, C‑310/04, EU:C:2006:521, paragraph 96 and the case-law cited), the internal market (see, for example, judgment of 8 December 2020, Poland v Parliament and Council, C‑626/18, EU:C:2020:1000, paragraphs 95
and 97 and the case-law cited) or the common transport policy (judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 247 and the case-law cited).
29      Judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish) (C‑611/17, EU:C:2019:332, paragraph 56).
30      See, ex multis, judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish) (C‑611/17, EU:C:2019:332, paragraph 55 and the case-law cited).
31      See judgment of 11 July 1989, Schräder HS Kraftfutter (265/87, EU:C:1989:303, paragraph 22),
which clearly expressed that principle
for the first time
in the area of the common agricultural policy
and which has been repeated numerous times since (emphasis added); see, ex multis, judgments of 13 November 1990, Fedesa and Others
(C‑331/88, EU:C:1990:391, paragraph 14) (in the area of the common agricultural policy), and, more recently, of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish) (C‑611/17, EU:C:2019:332, paragraph 27 and the case-law cited) (in the area of the CFP).
32      See judgment of 12 July 2001, Jippes and Others (C‑189/01, EU:C:2001:420, paragraph 83), in which the Court, for the first time in the field of the common agricultural policy, added that element to explain the limitation of its own power of judicial review. That position was later repeated in cases covering various areas of EU
legislative activity, such as the internal market (see judgment of 8 December 2020, Poland v Parliament and Council, C‑626/18, EU:C:2020:1000, paragraph 95 and the case-law cited) or the common transport policy (see judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package),  C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 242 and the case-law cited).
33      See, in that respect, judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish) (C‑611/17, EU:C:2019:332, paragraph 56).
34      Judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package)
(C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 243 and the case-law cited).
35      See, for example, judgments of 8 December 2020, Poland v Parliament and Council
(C‑626/18, EU:C:2020:1000, paragraph 98 and the case-law cited), and of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package)
(C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 243 and the case-law cited).
36      See, to that effect, judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package)
(C‑541/20 to C‑555/20, EU:C:2024:818, paragraphs 218 and 244 and the case-law cited).
37      See, to that effect, Emiliou, N., The principle of proportionality in European law: a comparative study, Kluwer Law International,
The Hague,
1996, p. 172, who argues that ‘a threat to fundamental rights or freedoms will justify a more rigorous standard of scrutiny’
of the proportionality of the action at issue.
38      See,
in that respect,
Opinion of Advocate General Emiliou in Nordic Info (C‑128/22, EU:C:2023:645, point 120), in which he points out that, generally although not always, in its free movement case-law, the Court only undertakes an assessment of the suitability and necessity of the measure at issue, whereas, as regards an assessment of fundamental rights, the Court usually also enters into an assessment of the proportionality ‘stricto sensu’ of a measure.
39      I observe that it is possible to read the case-law as putting in place a hierarchy, in terms of their importance and potential for interference, among the fundamental rights protected by the Charter and that
only a limitation of the ‘more important’ rights requires strict scrutiny by the Court (see, to that effect, judgment of 18 December 2025, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge, C‑417/23, EU:C:2025:1017, paragraph 171 and the case-law cited, in which the Court explains that the discretion left to the authorities ‘will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of fundamental or “intimate” rights’). Without it being necessary, in the present case, to take a position on the question of whether there exists a hierarchy among fundamental rights, it suffices to observe that the Court has already confirmed that the judicial review of the alleged interference with the right to privacy and data protection requires a high intensity of review.
40      See, in that respect, judgment of 8 April 2014, Digital Rights Ireland and Others
(C‑293/12 and C‑594/12, EU:C:2014:238), and in particular paragraph 48 thereof, in which the Court held that ‘in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right caused by Directive 2006/24, the EU legislature’s discretion is reduced, with the result that review of that discretion should be strict’.
41      Judgment of 22 November 2022 (C‑37/20 and C‑601/20, EU:C:2022:912).
42      In my view, it is the fact that there is an interference with (certain) fundamental rights, and not the seriousness of that interference, which triggers the Court’s high
intensity of review. The statement in paragraph 48 of the judgment of 8 April 2014, Digital Rights Ireland and Others
(C‑293/12 and C‑594/12, EU:C:2014:238), quoted in footnote 40 to the present Opinion, might, however, lead to the conclusion that a high intensity of review is necessary only when there is a serious interference with the right at issue (in that case, the right to privacy). To my mind, however, the fact that the interference is not serious might be relevant for finding that a legislative measure is
proportionate in the strict sense (third level), but is not relevant for the Court in deciding whether to remain at the first level of the proportionality assessment, that is to say, enquiring into whether the measure in question is manifestly inappropriate. That is, I believe, clearly demonstrated by the way in which the Court conducted the proportionality assessment in its judgments of 21 March 2024, Landeshauptstadt Wiesbaden (C‑61/22, EU:C:2024:251, especially paragraphs 106 to 124), and of 18 December 2025, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge (C‑417/23, EU:C:2025:1017, paragraph 168 and the case-law cited).
43      The
requirement for the existence of a link between the alleged restriction of a fundamental right and the effects of the measure in question
is not unique to EU
law. See, by analogy, the US
Supreme Court judgment in Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986), p. 705 (finding that there was an insufficient link between a First Amendment challenge, which would have required a high intensity of review by the US
courts, and the closure of a bookshop on the ground that prostitution took place there).
44      While the Italian Republic specifies that the measure at issue is ‘manifestly’ disproportionate, it also explains that it does not consider that such a lower standard should be applied in the present case.
45      See, as regards the applicability of the right to private and family life at work, ECtHR, 17 October 2019, López Ribalda and Others v. Spain, CE:ECHR:2019:1017JUD000187413, § 89 and the case-law cited (referring to the fact that ‘a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers’).
46      See, in that respect, recital 106 of the contested regulation, which explains that the system established thereby respects the principles of privacy by design and privacy by default.
47      See ECtHR,
17 October 2019, López Ribalda and Others v. Spain, CE:ECHR:2019:1017JUD000187413__ § 89 and the case-law cited (explaining that ‘the right of each person to the protection of his or her image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person’).
48      Indeed, while recital 24 of the contested regulation highlights that ‘the possibility to identify individual persons in the recorded video material should be limited to the extent possible, and where necessary the data should be anonymised’, those two elements themselves indicate that there remains scope for identification of the persons aboard the fishing vessels at issue. See also Ministry of Food, Agriculture and Fisheries of Denmark, Danish Fisheries Agency, Electronic monitoring in the Danish Kattegat (3AS) Nephrops fishery, October
2023 (‘the Danish Fisheries Agency Report’), p. 24, which was annexed by the Commission to its intervention and in which that agency explains that ‘it cannot be avoided that fishers come within the cameras’ field of view, for example if they lean over the sorting area during catch processing’.
49      OJ 2007 C 303, p. 17.
50      According to the Explanations relating to the Charter, that element ‘draws on’ Article 26 of the revised European Social Charter (ETS No 163). That provision states that ‘with a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organisations: 1. to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct; [and] 2. to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct.’ It is difficult to see, if
interpreted in good faith and in accordance with the ordinary meaning of its terms, as required by Article 31(1) of the Vienna Convention on the Law of Treaties (United Nations Treaty Series, Vol. 1155 p. 331), how
that provision deals with the type of circumstances that are at issue in the present case. See also, along the same lines, Jarass, D., ‘Article 31’, in Jarass, D., Charta der Grundrechte der Europäischen Union, C.H.Beck, Munich, 2021, p. 8, with reference to further commentators.
51      See, for example, WWF, Socio-Economic Impacts of the EU
Common Fisheries Policy: An evaluation of the European Union fishing fleet and options for the future,
2021, p. 25, characterising the ‘crew share model’ as still being dominant in the EU fishing industry; available at: https://wwfeu.awsassets.panda.org/downloads/wwf_cfp_socio_economic_impact_study_2021.pdf.
52      See Bogg, A., ‘Article 31 – Fair and Just Working Conditions’, in Peers, S., et al. (eds), The EU Charter of Fundamental Rights –
A
Commentary, Hart Publishing, 2014, point 31.07, who argues, along that line, that, consequently, Article 31 of the Charter ‘should be regarded as a provision with very significant normative weight and importance’.
53      See
ECtHR, 28 November 2017,
Antović and Mirković v. Montenegro, CE:ECHR:2017:1128JUD007083813, § 44 (finding that non-convert video surveillance at work triggered the scope of application of Article 8 ECHR because ‘recorded and reproducible documentation of a person’s conduct at his or her workplace, which the employee, being obliged under the employment contract to perform the work in that place, cannot evade’).
54      See, in that regard, Opinion
4/2004 on the Processing of Personal Data by means of Video Surveillance of the Article 29 Data Protection Working Party (which was established pursuant to Article 29(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31)), which explains that ‘it is appropriate to point out that video surveillance systems aimed directly at controlling, from a remote location, quality and amount of working activities, therefore entailing the processing of personal data in this context, should not be permitted as a rule’.
55      See recitals 1, 3 and 24 of the contested regulation. See also the Impact Assessment, p. 18, which explains that ‘if the current control system is not adapted to the reformed CFP and is not properly modernised, there is a very high risk of undermining the objectives of the CFP
itself and its very raison d’être. Notably, the landing obligation introduced by the reformed CFP
would remain without proper control means and provisions. If compliance with the CFP
is not ensured, the international reputation and credibility of the EU will also be affected in bilateral and multilateral fora.’
56      In relation to the objectives of the CFP, see judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero) (C‑330/22, EU:C:2024:19, paragraphs 62 and 65).
57      See European Commission, Synthesis of the landing obligation measures and discard rates, EASME/EMFF/2018/011, 16 June 2021, p. 52, which states that ‘the main risks and challenges associated with the LO are to ensure control of discarding at sea, to ensure the detailed and accurate documentation of all fishing trips and to ensure that the conditions and thresholds associated with high survivability and de minimis exemptions are enforced. These risks are difficult to mitigate by means of traditional controls such as inspections at sea. One of the key challenges, therefore, is the need for new regulatory and enforcement mechanisms, as the focus of monitoring and control shifts from landing activities to activities at sea … This shift requires that fishing and discarding practices around the vessel are 100% monitored during fishing in order to detect what is caught and whether there is discarding …’.
58      See the Impact Assessment, p. 10.
59      See, in that respect, judgment of 18 December 2025, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge (C‑417/23, EU:C:2025:1017, paragraph 161 and the case-law cited), requiring coherence between a contested measure
and its stated objective.
60      See, for example, General Secretariat of the Council, Proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1224/2009, and amending Council Regulations (EC) No 768/2005, (EC) No 1967/2006, (EC) No 1005/2008, and Regulation (EU) No 2016/1139 of the European Parliament and of the Council as regards fisheries control, ST 15184/2/19 Rev 2 (5 February 2020), which summarises the positions of the Member States, including that of the Italian Republic, on the use of observers; in particular footnotes 209 to 211.
61      See Article 73a of the Fisheries Control Regulation, as inserted by Regulation 2015/812, which lays down that ‘Member States may deploy control observers on board fishing vessels flying their flag for the monitoring of fisheries subject to the landing obligation’.
62      See General Secretariat of the Council, Proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1224/2009, and amending Council Regulations (EC) No 768/2005, (EC) No 1967/2006, (EC) No 1005/2008, and Regulation (EU) No 2016/1139 of the European Parliament and of the Council as regards fisheries control – General approach, ST 9390/2/21 Rev 2 (24 June 2021), point 12(b).
63      Contrary to what has been asserted by the Italian Republic during the present
proceedings, that document also evidences that the EU
legislature found the use of observers to be more costly than the deployment of CCTV
cameras.
64      See the Impact Assessment, p. 80.
65      The Parliament refers, in that regard, to a study drawn up at the request of the PECH
Committee: see van Helmond, A.T.M., Research for PECH Committee – Workshop on electronic technologies for fisheries – Part II: Electronic monitoring systems, European Parliament, Policy Department for Structural and Cohesion Policies, Brussels, 2021, p. 13 (explaining that ‘after the first trial with CCTV (closed-circuit television) camera systems on board fishing vessels to cope with management reforms and gear theft in the British Columbia crab fishery …, it was quickly recognised that cameras could be used for monitoring and control in fisheries that are challenged by poor coverage by at‐sea observations’). See also the Danish Fisheries Agency Report, annexed to the Commission’s intervention, p. 43, which states that ‘the experience after three years of camera documented fisheries in Kattegat and the Baltic Sea is that camera documentation is an effective form of control, especially for documenting catches and thus compliance with the landing obligation. The assessment is also that there are no alternative control methods that can effectively control the landing obligation. From the perspective of the authorities, EM with cameras is therefore a very effective control tool’.
66      The Court’s use of the term ‘strictly necessary’ in cases in which the interference with the right to privacy is at issue could, in fact, be understood as pertinent (also) for this third level of the proportionality assessment, not only for the necessity test. See, to that effect, ex multis, judgment of 6 October 2020, Privacy International (C‑623/17, EU:C:2020:790, paragraph 67 and the case-law cited), in which the Court stated that ‘it should be borne in mind that the protection of the fundamental right to privacy requires, according to the settled case-law of the Court, that derogations from and limitations on the protection of personal data must apply only in so far as is strictly necessary. In addition, an objective of general interest may not be pursued without having regard to the fact that it must be reconciled with the fundamental rights affected by the measure, by properly balancing the objective of general interest against the rights at issue’ (emphasis added).
67      See, in respect of national measures, judgment of 18 December 2025, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge (C‑417/23, EU:C:2025:1017, paragraph 165 and the case-law cited), explaining that ‘even if no other equally effective measure can be identified, the referring court will still have to examine whether that legislation is proportionate stricto sensu [to] ascertain whether the disadvantages caused by that legislation are disproportionate to the objectives pursued’.
68      See footnote 42 to the present Opinion and, most recently, judgment of 18 December 2025, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge (C‑417/23, EU:C:2025:1017, paragraph 168 and the case-law cited).
69      See, by analogy, judgment of 6 October 2020, La Quadrature du Net and
Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 147 and the case-law cited), in which the Court highlights that the requirement of ‘strict necessity’ mandates that the retention of traffic and location data for the purposes of combating certain crimes and threats and safeguarding national security requires that ‘retention [of said data] is limited, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, to what is strictly necessary’.
70      See Article 13(2) of the Fisheries Control Regulation, as amended, which explains that that obligation is limited to ‘catching vessels of 18 metres in length overall or more flying their flag which pose a high risk of non-compliance with the landing obligation’. See also Article 13(3)(a) thereof.
71      See Article 13(3)(b) of the Fisheries Control Regulation, as amended, which lays down that ‘recorded video material obtained from those systems only concerns the gear and the parts of the vessel where fishery products are brought on board, handled, stored and all areas where discarding can occur’. See also Annex 1 to the Commission’s intervention, which provides for a specific example of how those areas may be covered by video surveillance while minimising the potential to identify the persons working on/appearing in those areas.
72      See Article 13(3)(c) of the Fisheries Control Regulation, as amended, which explains that the Commission shall ‘set out detailed rules on the storage of, the exchange of and access to the data from the REM system’. It is, however, also true that such measures were not yet in place when the Court was asked to decide on the legality of the contested regulation.
73      See Article 13(3)(b) of the Fisheries Control Regulation, as amended, which states that recorded video material ‘does not, to the extent possible, allow the identification of natural persons. They shall also require that, if it is detected that natural persons can be identified on such recorded video material, the competent authorities shall ensure anonymisation of the personal data as soon as possible and shall inform the master or the operator of the REM system of this detection’.
74      That differs from the legislative proposal made by the Commission, in which a retention period of five years was foreseen; see recital 59 and Article 112(3) of Proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1224/2009, and amending Council Regulations (EC) No 768/2005, (EC) No 1967/2006, (EC) No 1005/2008, and Regulation (EU) No 2016/1139 of the European Parliament and of the Council as regards fisheries control (COM(2018) 368 final).
75      See, in that regard, point 9 of the present Opinion, where I briefly explain the system of fishing effort management under the CFP
Regulation.