OPINION OF ADVOCATE GENERAL

MAZÁK

delivered on 29 April 2010 ( )

Case C‑453/08

Panagiotis I. Karanikolas

Valsamis Daravanis

Georgios Kouvoukliotis

Panagiotis Dolos

Dimitrios Z. Parisis

Konstantinos Emmanouil

Ioannis Anasoglou

Pantelis A. Beis

Dimitrios Chatziandreou

Ioannis Zaragkoulias

Christos I. Tarampatzis

Triantafyllos K. Mavrogiannis

Sotirios Th. Liotakis

Vasileios Karampasis

Dimitrios Melissidis

Ioannis V. Kleovoulos

Dimitrios I. Patsakos

Theodoros Fourvarakis

Dimitrios K. Dimitrakopoulos

Sinetairismos Paraktion Alion Kavalas

v

Ipourgos Agrotikis Anaptixis kai Trofimon

and

Nomarkhiaki Aftodiikisi Dramas – Kavalas – Xanthis

(Reference for a preliminary ruling from the Simvoulio tis Epikratias (Hellenic Republic))

(Common fisheries policy – Conservation of fishery resources in the Mediterranean – Regulation No 1626/94 – Articles 1(2), 2(3), 3(1) and 3(1a) – Regulation No 2371/2002 – Supplementary national measures adopted prior to entry into force of Regulation No 1626/94 – Competence of Member States – Outright prohibition of type of fishing gear – Principles of proportionality and non-discrimination)

I – Introduction

1. In the present case the Simvoulio tis Epikratias (Hellenic Republic) referred to the Court for a preliminary ruling under Article 234 EC (now Article 267 TFEU) two questions on the interpretation of Council Regulation (EC) No 1626/94 of 27 June 1994 laying down certain technical measures for the conservation of fishery resources in the Mediterranean. ( ) The questions centre on whether, and if so under what conditions, a Member State may maintain national measures supplementary to those contained in Regulation No 1626/94 consisting of the complete prohibition of the use of a type of fishing gear where that use is, in principle, allowed under the provisions of that regulation.

II – Legal context

A – Community rules

1. Regulation No 2371/2002

2. Article 1 of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, ( ) entitled ‘Scope’, provides:

‘1. The Common Fisheries Policy shall cover conservation, management and exploitation of living aquatic resources, aquaculture, and the processing and marketing of fishery and aquaculture products where such activities are practised on the territory of Member States or in Union waters or by Union fishing vessels or, without prejudice to the primary responsibility of the flag State, nationals of Member States.

2. The Common Fisheries Policy shall provide for coherent measures concerning:

(a) conservation, management and exploitation of living aquatic resources,

(b) limitation of the environmental impact of fishing,

(c) conditions of access to waters and resources,

(d) structural policy and the management of the fleet capacity,

(e) control and enforcement,

(f) aquaculture,

(g) common organisation of the markets, and

(h) international relations.’

3. Article 2 of Regulation No 2371/2002, entitled ‘Objectives’, provides:

‘1. The Common Fisheries Policy shall ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions.

For this purpose, the Community shall apply the precautionary approach in taking measures designed to protect and conserve living aquatic resources, to provide for their sustainable exploitation and to minimise the impact of fishing activities on marine eco-systems. It shall aim at a progressive implementation of an eco-system-based approach to fisheries management. It shall aim to contribute to efficient fishing activities within an economically viable and competitive fisheries and aquaculture industry, providing a fair standard of living for those who depend on fishing activities and taking into account the interests of consumers.

2. The Common Fisheries Policy shall be guided by the following principles of good governance:

(a) clear definition of responsibilities at the Community, national and local levels;

(b) a decision-making process based on sound scientific advice which delivers timely results;

(c) broad involvement of stakeholders at all stages of the policy from conception to implementation;

(d) consistence with other Community policies, in particular with environmental, social, regional, development, health and consumer protection policies.’

4. Article 4(1) of Regulation No 2371/2002 provides:

‘To achieve the objectives mentioned in Article 2(1), the Council shall establish Community measures governing access to waters and resources and the sustainable pursuit of fishing activities.’

5. Article 9 of Regulation No 2371/2002, entitled ‘Member State measures within the 12 nautical mile zone’, provides:

‘1. A Member State may take non-discriminatory measures for the conservation and management of fisheries resources and to minimise the effect of fishing on the conservation of marine eco-systems within 12 nautical miles of its baselines provided that the Community has not adopted measures addressing conservation and management specifically for this area. The Member State measures shall be compatible with the objectives set out in Article 2 and no less stringent than existing Community legislation.

Where measures to be adopted by a Member State are liable to affect the vessels of another Member State, such measures shall be adopted only after the Commission, the Member State and the Regional Advisory Councils concerned have been consulted on a draft of the measures accompanied by an explanatory memorandum.

…’

6. Article 10 of Regulation No 2371/2002 provides:

‘Member State measures applicable solely to fishing vessels flying their flag.

Member States may take measures for the conservation and management of stocks in waters under their sovereignty or jurisdiction provided that:

(a) they apply solely to fishing vessels flying the flag of the Member State concerned and registered in the Community or, in the case of fishing activities which are not conducted by a fishing vessel, to persons established in the Member State concerned and

(b) they are compatible with the objectives set out in Article 2(1) and no less stringent than existing [European Union] legislation.’

2. Regulation No 1626/94

7. The second, fourth, eighth and ninth recitals in the preamble to Regulation No 1626/94 provide:

‘… the time has now come to remedy the problems currently affecting resources in the Mediterranean by introducing a harmonised management system suited to the circumstances there, while taking into account existing national regulations and making adjustment to the latter, as required to protect stocks, in a balanced and, where appropriate progressive manner’;

‘Whereas gear which, when used in the Mediterranean, contributes excessively to the degradation of the marine environment or to the running-down of certain stocks should be prohibited; whereas part of the coastal zone should be reserved for the most selective gear used by small-scale fishermen …’;

‘Whereas national measures supplementary to, or going beyond the minimum requirements of, the system established by this Regulation or measures regulating the relationships between those engaged in fishing activities should remain possible; whereas such measures may be maintained or introduced, subject to review by the Commission as regards their compatibility with Community law and their conformity with the common fisheries policy’.

‘Whereas, for a limited period and according to a procedure which ensures a minimum negative effect on the activities of Community fishermen, national measures should be accepted.’

8. Article 1 of Regulation No 1626/94 provides:

‘1. This Regulation shall apply to all fisheries and related activities pursued within the territory or the maritime waters of the Mediterranean of the east of line 5° 36’ west falling under the sovereignty or jurisdiction of Member States with the exception of pools and lagoons. It shall also apply to such activities pursued in the Mediterranean outside those waters by Community vessels.

2. Member States with a Mediterranean coastline may continue to legislate in the areas covered by paragraph 1, including that of non-commercial fisheries, by adopting measures supplementary to, or going beyond the minimum requirements of, the system established by this Regulation, provided such measures are compatible with Community law and in conformity with the common fisheries policy.

…

3. The Commission shall be informed, in time for it to present its observations in accordance with the procedure laid down in Article 14 of Regulation (EEC) No 3094/86, of any plans to introduce or amend national conservation and resource management measures.’

9. Article 2(3) of Regulation No 1626/94 provides:

‘The use of encircling and towed nets set from a boat and operated from the shore (shore seines) shall be prohibited as from 1 January 2002 unless the Council, acting by a qualified majority on a proposal from the Commission, decides otherwise in the light of scientific data proving that their use does not have a negative impact on resources.’

10. Article 3(1) provides:

‘1. The use of trawls, seines or similar nets shall be prohibited within three nautical miles of the coast or within the 50 m isobath where that depth is reached at a shorter distance, irrespective of the method of towing or haulage, except where a derogation is provided for in national legislation in respect of a three-mile coastal zone which extends beyond the territorial waters of a Member State.

However, any fishing gear used at a distance from the coast of less than that laid down in the first subparagraph and used in accordance with national law in force on 1 January 1994 may be used until 31 December 2002, unless the Council, acting by a qualified majority on a proposal from the Commission, decides otherwise in the light of scientific data proving that their use does not have a negative impact on resources.’

11. Article 3(1)(a) of Regulation No 1626/94 provides:

‘The use of fishing gear under the conditions of the second subparagraph of paragraph 1 shall be prohibited, with exception of the fishery conducted with “gangui”, unless the Member State concerned has enacted measures ensuring that for these fisheries:

– the prohibition envisaged in paragraph 3 is not jeopardised,

– fishing does not interfere with the activities of vessels using gears other than trawls, seines or similar towed nets,

– fishing is restricted to target species not subject to a minimum landing size in accordance with Article 8,

– fishing is restricted in such a way that catches of species mentioned in Annex IV are minimal,

– vessels are subject to special fishing permits issued in accordance with Council Regulation (EC) No 1627/94 of 27 June 1994 laying down general provisions concerning special fishing permits[ ( )].

These measures shall be communicated to the Commission before 31 December 2000.’

12. Article 3(4) of Regulation No 1626/94 provides:

‘It shall be prohibited to set any type of encircling net within 300 m of the coast or within the 30 m isobath where that depth is reached at a shorter distance.’

13. Article 5(1) of Regulation No 1626/94 provides:

‘Member States shall fix restrictions involving the technical characteristics of the main types of gear in accordance with the minimum requirements set out in Annex II.’

14. Article 6(1) of Regulation No 1626/94 provides:

‘The using and keeping on board of trawl or similar towed gear, gill net or encircling net shall be prohibited, unless the mesh size in that part of the net having the smallest meshes is equal to or greater than one of the minimum mesh sizes listed in Annex III.

…’

15. Annex III of Regulation No 1626/94 provides that minimum mesh size for encircling nets is 14 mm.

B – National law

16. By Royal Decree of 15 August 1958 regulating fishing with small encircling nets (FEK A’ 132 of 29 August 1958), fishing carried out with such nets was permitted subject to certain conditions including total length of fishing gear and mesh size of nets. Conditions were also imposed concerning fishing periods and times.

17. Pursuant to Presidential Decree No 587/1984 (FEK A’ 210) all permits allowing fishing with small encircling nets previously granted to fishing vessels ceased to be valid after 31 December 1986. Presidential Decree No 542/1985 (FEK A’ 191) prohibited the subsequent grant of permits allowing fishing with small encircling nets in fishing vessels and repeated the provisions of Presidential Decree No 587/1984, which it repealed.

18. By Presidential Decree No 526/1988 (FEK A’ 237 of 26 October 1988), fishing with garfish nets was exempted from the foregoing provisions of Presidential Decree No 542/1985 and fishing with garfish nets for garfish (Belone belone) and Atlantic saury (Scomberesox saurus saurus) only was permitted subject to certain conditions concerning, inter alia, fishing periods and times, net and mesh size.

19. Presidential Decree No 320/1997 (FEK A’ 224), provided that the grant of permits allowing fishing with garfish nets in fishing vessels was henceforth to be prohibited and that all permits allowing fishing with that fishing gear would cease to be valid after 31 December 1998. Presidential Decree No 526/1988 was repealed from 31 December 1998.

III – The main proceedings and the questions referred for a preliminary ruling

20. By application dated 12 May 2003, Panagiotis Ioannis Karanikolas and 19 other professional fishermen and owners of fishing vessels, resident in Kavala (‘applicant fishermen’), sought the grant of permits for sardine fishing using the fishing gear called a sardine net with the restrictions and technical characteristics laid down in Regulation No 1626/94. Their application was forwarded by Nomarkhiaki Aftodiikisi Dramas – Kavalas – Xanthis (Prefectural Authority for Drama, Kavala and Xanthi) to the Ministry for Agriculture. The authority in question requested to be informed as to the possibility of granting the aforementioned permits on the basis of Regulation No 1626/94. The Sea Fisheries Directorate of that ministry, in letter No 172603, considered that the application could not be granted because the grant of permits allowing fishing with the abovementioned nets was prohibited by the single article of Presidential Decree No 542/1985 (FEK A’ 191) whose provisions continued to apply subsequent to Regulation No 1626/94 as a supplementary fishery measure. The Ministry of Agriculture’s view was notified by letter No 19/760 dated 29 August 2003 to the applicant fishermen.

21. The applicant fishermen together with the Coastal Fisheries Cooperative, Kavala, of which they are members, sought the annulment of letters No 172603 and No 19/760 before the referring court. Alieftikos Agrotikos Sinetairismos Gri-Gri, Kavala Region – Makedonia (‘Makedonia’) and Panellinia Enosi Plioktiton Mesis Aliias intervened in those proceedings.

22. The referring court considers that the Member States may adopt supplementary measures which are stricter than Regulation No 1626/94 in the marine areas subject to their sovereignty in order to protect fragile or endangered species of marine fauna. The measures in question are not limited to the laying down of stricter technical specifications for fishing gear or periods of time in which fishing is permitted in zones, but also include the complete prohibition of the use of a type of fishing gear. Moreover, prohibitions on the use of fishing gear which were imposed by a provision of national law before Regulation No 1626/94 entered into force are not affected by the subsequent provisions of the regulation, even if the use of that gear is permitted under the regulation. The Simvoulio tis Epikratias, considering that the decision in the case before it depends on the interpretation of Articles 1(2), 2(3), 3(1) and 3(1a) of Regulation No 1626/94, decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

‘(a) Is it permitted, for the purposes of Article 1(2) of Council Regulation No 1626/94, for a Member State to adopt supplementary measures consisting in the complete prohibition of the use of fishing gear whose use is in principle allowed under the provisions of that regulation?

(b) Is it permitted, for the purposes of the provisions of that regulation, to use in the marine area of a Member State with a Mediterranean coastline fishing gear which is not included among the gear specified as being in principle prohibited in Article 2(3) and Article 3(1) and (1a) of the regulation and whose use was prohibited before the regulation entered into force by a national provision of the Member State?’

IV – Procedure before the Court

23. Written pleadings were submitted by the applicant fishermen, Makedonia, the Greek and Italian Governments and the Commission. A hearing was held on 19 November 2009.

V – Assessment

24. By its two questions, which it is appropriate to examine together, the referring court asks for guidance on whether, and if so under what conditions, a Member State may maintain national measures supplementary to those contained in Regulation No 1626/94 consisting of the complete prohibition of the use of a type of fishing gear where that use is, in principle, allowed under the provisions of that regulation.

25. It would appear, subject to verification by the national court, that the fishing gear (sardine net) in question in the national proceedings is a small encircling net whose use is regulated but not prohibited ( ) by Community law pursuant to Articles 3(4), 5 and 6 of Regulation No 1626/94. While there was some dispute at the hearing of 19 November 2009 concerning the scope of the provisions of national law, it would appear, subject to verification by the national court, that there is a complete prohibition of the use of such fishing gear pursuant to Greek law and that no authorisations presently exist for the use of such gear in the Hellenic Republic.

26. The national measures imposing a complete prohibition of the use of small encircling nets were adopted prior to the entry into force of Regulation No 1626/94 on 1 January 1995. According to the referring court, the use of any kind of small encircling net was permitted subject to certain conditions before 1 January 1987 under Royal Decree of 15 August 1958, for the catching of any kind of fish and therefore also of sardines, if the net had certain technical characteristics. After 1 January 1987, the use of small encircling nets was prohibited, and it was only in the period from 26 October 1988 to 31 December 1998 that use of the small encircling net called a ‘zarganodikhto’ (garfish net) was permitted. Permission was granted exclusively for the fishing of garfish and Atlantic saury and was subject to certain conditions. Thus the use of sardine nets for the fishing of sardines, which is relevant to the proceedings before the referring court, appears, subject to verification by that court, to have been banned since 1 January 1987 and the exception for garfish nets for the fishing of garfish and Atlantic saury and the subsequent repeal of that exception do not appear relevant to those proceedings.

27. Article 1(2) of Regulation No 1626/94 provides that that regulation merely lays down minimum requirements ( ) and Member States are permitted after its entry into force to adopt supplementary measures or measures going beyond the minimum requirements established by that regulation. Such measures must be compatible with Community law and in conformity with the common fisheries policy. Moreover, in accordance with Article 1(3) of Regulation No 1626/94, the Commission must be informed, in time for it to present its observations in accordance with the procedure in Article 14 of Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources, ( ) of any plans to introduce or amend national conservation and resource management measures. ( )

28. Thus following the entry into force of Regulation No 1626/94, Member States are authorised, subject to certain substantive and procedural conditions, to introduce supplementary national measures or to amend such measures.

29. As regards the question of maintenance of existing national supplementary measures, which is relevant to the proceedings before the referring court, the Greek and Italian Governments, Makedonia and the Commission consider essentially that national supplementary measures which were adopted prior to the entry into force of that regulation may be maintained. The applicant fishermen consider however that in accordance with Article 1(2) of Regulation No 1626/94, national supplementary measures may only be adopted after the entry into force of that regulation. National measures which were adopted prior to Regulation No 1626/94 thus have no legal basis under that regulation and no longer continue in force due to the principle of supremacy of the provisions of the regulation.

30. In my view, in the light of the terms ‘Member States … may continue to legislate’ contained in Article 1(2) of Regulation No 1626/94 and the requirement that the Commission be informed of any plans to ‘amend[ ( )] national conservation and resource management measures’ contained in Article 1(3) of Regulation No 1626/94 that regulation envisages the continued existence of national supplementary measures which predate its entry into force.

31. This interpretation is supported, in my view, in particular by the second recital in the preamble to Regulation No 1626/94 which provides for the introduction of a harmonised management system in the Mediterranean, while taking into account existing national regulations and making adjustment to the latter. Moreover, in accordance with the eighth recital in the preamble to Regulation No 1626/94, national measures supplementary to or going beyond the minimum requirements of that regulation may be maintained. The terms of the eighth recital in the preamble to Regulation No 1626/94 also suggest that the maintenance of such measures is subject to review by the Commission. However, Article 1(3) of Regulation No 1626/94 merely requires that the Commission be informed of any plans to introduce or amend national measures. Thus in the absence of any express requirement pursuant to Article 1(3) of Regulation No 1626/94 to inform the Commission of national measures which predate the entry into force of that regulation, I consider that the maintenance of such measures is not subject to Commission review. In that regard, it is settled case-law that the preamble to a Community act has no binding legal force and cannot be validly relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner clearly contrary to their wording. ( )

32. In addition, in both its written and oral pleadings, the Commission indicated that when drawing up its proposal for Regulation No 1626/94, it carried out a study of existing national measures and that those measures were taken into account by the Commission in the legislative process leading up to the adoption of Regulation No 1626/94. I would note in that regard that in the explanatory memorandum to its proposal for a Council Regulation harmonising various technical measures in Mediterranean fisheries, ( ) the Commission stated that on the basis of some 400 legal texts communicated by the four Mediterranean Member States, it had carried out a comparative study on the provisions applied to Mediterranean fisheries with a view to distilling an essential body of rules to be implemented at Community level. According to that explanatory memorandum, the Commission’s proposal thus indicates non-exhaustive minimum restrictions to be adopted at Community level.

33. I therefore consider that Regulation No 1626/94 merely establishes certain minimum technical standards for the conservation of fisheries resources in the Mediterranean and permits, in principle, not only the adoption or amendment of national supplementary measures but also the maintenance by Member States of existing such measures. In that regard and contrary to the claims of the applicant fishermen, I do not consider that Regulation No 1626/94, by specifying certain prohibited fishing gear, ( ) sets out in an exhaustive manner the fishing gear which is prohibited in the Mediterranean ( ) and thus pre-empts or excludes per se the maintenance or adoption by a Member State of measures prohibiting other fishing gear.

34. The question arises, however, whether the complete prohibition imposed by national law at stake before the referring court is otherwise compatible with Community law and, in particular, in conformity with the common fisheries policy as required by Article 1(2) of Regulation No 1626/94. In that regard it should be noted that the Court has no jurisdiction under Article 267 TFEU to apply a rule of Community law to a particular case and thus to judge provisions of national law by reference to such a rule. The Court however may, in the framework of the judicial cooperation provided for by Article 267 TFEU, and on the basis of the material presented to it, provide a national court with an interpretation of Community law which may be useful to it in assessing the effects of the provisions of national law. ( )

35. Given that the Community legislature has not sought to harmonise completely the rules, inter alia, on the prohibition of fishing gear in the Mediterranean, in my view, a degree of discretion is afforded to Member States in relation to measures supplementary to, or going beyond, the minimum requirements of the system established by Regulation No 1626/94. However, Member States must exercise their discretion in conformity with the common fisheries policy and the general principles of Community law, which include the principles of proportionality and equal treatment. ( )

36. In the order for reference, the referring court indicated that Presidential Decree No 542/1985 was adopted in reliance on Opinion No 75 of 12 April 1984 given by the Fisheries Council. According to the order for reference, that opinion stated that the complete prohibition in question was considered necessary because the sardine net was being used in a zone one or two miles from the coast which was an area where aquatic organisms developed and reproduced and in which fishing was also carried out using other fishing gear, with the result that there was a reduction in stocks.

37. It would appear therefore from the order for reference that the purpose of the prohibition is to conserve aquatic resources in a zone one or two nautical miles from the coast, an objective which is, in my view, compatible with the common fisheries policy. ( )

38. The referring court did not indicate whether the prohibition pursued any other objective.

39. The applicant fishermen however claim, inter alia, that the prohibition in question is contrary to the aim expressed in the fourth recital in the preamble to Regulation No 1626/94 that the coastal zone should be reserved for the most selective gear used by small-scale fishermen. Moreover, according to the applicant fishermen, contrary to the ninth recital in the preamble to Regulation No 1626/94, the prohibition in question is unlimited in duration and negatively affects Community fishermen by depriving them of the use of a particular fishing gear. They also state that the prohibition in question was not adopted in accordance with scientific evidence. That evidence demonstrates firstly, that the correct use of sardine nets in the Gulf of Kavala does not negatively affect fishing stocks and secondly, constitutes a source of revenue for small-scale coastal fishermen in the region particularly in the winter. In addition, the prohibition leads to discrimination between fishermen who fish for sardines using large encircling nets from large boats (gri-gri) and coastal fishermen who use small encircling nets (sardine nets). The applicant fishermen also consider that the prohibition of the use of sardine nets is disproportionate.

40. Makedonia claims firstly that it is possible to fish for sardines by means other than sardine nets. Moreover, given that 92% of the fleet of 17 088 boats are small coastal fishing boats, if licences were granted for sardine nets to all boats, that would gravely prejudice fishing stocks in the Gulf of Kavala and nationwide. It is not possible to grant licences to the applicant fishermen and not to the other thousands of coastal fishing boats. In addition, if such licences were granted in respect of the period 1 March to 15 December that would coincide with the fishing period of the fishing boats (gri-gri) which represent 1.6% of the Greek fleet and would lead to a fall in price of sardines and thus seriously affect the revenue of such boats.

41. The Greek Government states that it has not banned sardine fishing but merely a particular type of fishing gear. Small encircling seines (sardine nets) are used within one to two nautical miles of the coast which is where certain aquatic organisms reproduce and develop. Sardines also hibernate in that region. Sardine nets have an impressive capacity and lead to the destruction of sardine and indeed all fisheries resources in that region. Large encircling nets are authorised as they do not cause the same damage as sardine nets. In that regard, at the hearing, the Greek Government stated that large encircling nets may not be used in the coastal zone. The Greek Government considers that the prohibition is appropriate and proportionate as it does not prevent fishing activities. Fishermen can fish all year round using a large variety of other types of fishing gear including fishing gear for sardines.

42. The Commission considers that the referring court should examine whether the prohibition is proportionate and whether it is compatible with the principle of equal treatment with regard to the operators in question. The Commission considers that in order to assess whether the prohibition in question is appropriate and proportionate to the objective of conserving and managing aquatic resources, the environmental, economic and social aspects must be taken into account, with no aspect having absolute priority over another. The Commission considers that it is necessary to examine whether it is scientifically established that there was a serious reduction in fishing stocks at the time the general prohibition was adopted in 1987 and 1999 and whether the reduction was due to fishing gear other than the sardine net. It is also necessary to examine whether it is possible to monitor illegal fishing. If that possibility is limited or non-existent then a complete prohibition of fishing using sardine nets is justified. The national court should also examine the proportionality of the measure and its conformity with the principle of equal treatment in the light of the possibility under Greek law to use other fishing gear such as the gri-gri or trawls which fish for the same type of fish as the sardine nets.

43. It is settled case-law that compliance with the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. ( )

44. Given that the prohibition of small encircling nets, including sardine nets, would appear at present to be absolute in nature, in that it applies to all groups of fishermen, ( ) the prohibition does not appear, subject to verification by the referring court, to be directly discriminatory with regard to different groups of fishermen.

45. The referring court however must also verify whether the prohibition is indirectly discriminatory. In the order for reference itself, the referring court noted that according to Opinion No 75 of 12 April 1984 given by the Fisheries Council, fishing was being carried out in the coastal zone using small encircling nets and other fishing gear, resulting in a reduction in stocks. In that regard, it is unclear whether and if so on what basis only small encircling nets, including sardine nets, were prohibited pursuant to Greek law. If such a selective approach was adopted, the referring court must verify whether that approach is justified on the basis of objective criteria.

46. At the hearing on 19 November 2009, the Greek Government pointed to the particularly destructive capacity of the use of small encircling nets in the coastal zone. I would note, however, that it has been argued before the Court by the applicant fishermen and the Commission that the prohibition may in fact discriminate between small-scale coastal fishermen who use small encircling nets and larger-scale fishermen who use large encircling nets for gri-gri fishing. In that regard, it would appear from the file before the Court, subject to verification by the referring court, that there is no fundamental difference between large and small encircling nets other than their size and fishing capacity. Large encircling nets, given their size appear to have a far greater fishing capacity than small encircling nets, such as sardine nets. It can thus not be excluded that despite the alleged limited number of boats (1.6%) using large encircling nets for gri-gri fishing that their use could potentially and subject to verification by the referring court have a similar impact on fishing stocks as small encircling nets. There was however some considerable dispute between the parties before this Court as to whether the use of large encircling nets for gri-gri fishing of sardines is permitted 300 metres from the coast or indeed within one to two nautical miles of the coast and thus within an area where, according to the referring court, aquatic organisms develop and reproduce. Given the purported fishing capacity of large encircling nets, their alleged similarity to small encircling nets and use in the coastal zone, the question arises which must be addressed by the referring court as to whether the prohibition operates in fact in a discriminatory manner against particular groups of fishermen which is not justified on the basis of objective criteria.

47. In that regard, I consider that even if the prohibition in question affects to a greater extent or places a heavier burden on a particular group of fishermen, it does not constitute discrimination if that prohibition is based on objective criteria which are tailored to meet the stated objective of the measure of protecting the development and reproduction of aquatic organisms in a zone one or two nautical miles from the coast. ( )

48. As regards the compliance of the prohibition with the principle of proportionality, it requires that measures adopted do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when 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. ( ) It is clear that the assessment of the proportionality of the prohibition at issue in the main proceedings, in particular whether the objective of protecting aquatic resources within the coastal zone sought could be achieved by means other than an outright prohibition of small encircling nets, including sardine nets, requires a specific analysis of scientific evidence and the factual circumstances of the main proceedings, it being for the referring court to make that analysis. ( )

49. I consider that the referring court should be guided in its analysis by the precautionary principle. Thus, where there is scientific uncertainty as to the impact of the use of a particular type of fishing gear on aquatic resources, the Member State may, in accordance with the precautionary principle, take protective measures without having to wait until the reality and seriousness of that impact become fully apparent. ( ) I also consider that the assessment of the proportionality of the prohibition must also be carried out in the light of whether fishermen may use in an effective and economically viable manner other types of fishing gear for sardines which have less impact on aquatic resources.

50. In order to assess whether prohibiting the use of small encircling nets and thus sardine nets is appropriate in the light of the objective of that prohibition, I consider that the referring court must verify, on the basis of all available evidence and in the light of the precautionary principle, whether there appears to be a causal link between the use of such nets in the coastal zone and the destruction of aquatic resources, leading to a reduction in stocks. In that regard, the referring court should also verify whether the prohibition, which was introduced in 1987, remains appropriate in the light of current circumstances together with, inter alia, any past experience of detrimental effects resulting from any previous relaxation of the prohibition. ( )

51. Moreover, given that the applicant fishermen’s request is limited to sardine fishing in the Gulf of Kavala and the alleged abundance of sardine stocks in that region, the referring court should verify whether the nationwide prohibition of the use of small encircling nets and thus sardine nets is appropriate to the circumstances in that region. However, despite the fact that applicant fishermen merely seek licences for the use of the sardine net for sardine fishing, the referring court should verify the impact of the use of that net on all aquatic resources and not merely sardine stocks.

52. The referring court should also verify whether it is possible to achieve the objective of the measure at stake by less onerous means such as limiting catches, ( ) limiting fishing with sardine nets to particular times and periods. When assessing whether less onerous measures than an absolute prohibition of a particular type of fishing gear could be imposed without jeopardising the objective of conserving aquatic resources, the referring court must take in account whether it is possible to monitor effectively such measures.

VI – Conclusion

53. Accordingly, I propose that the Court should answer the questions referred by the Simvoulio tis Epikratias as follows:

Article 1(2) of Council Regulation (EC) No 1626/94 of 27 June 1994 laying down certain technical measures for the conservation of fishery resources in the Mediterranean must be interpreted as conferring a discretion on Member States to maintain supplementary measures adopted prior to the entry into force of that regulation consisting in the complete prohibition of the use of fishing gear which is not included among the gear specified as being prohibited in Article 2(3) and Article 3(1) and (1a) of the regulation and whose use is in principle allowed under the provisions of that regulation. In exercising that discretion Member States must comply with the common fisheries policy and the general principles of Community law including the principle of equal treatment and proportionality.