OPINION OF ADVOCATE GENERAL

WAHL

delivered on 25 January 2018 ( 1 )

Case C‑683/16

Deutscher Naturschutzring, Dachverband der deutschen Natur- und Umweltschutzverbände e.V.

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Verwaltungsgericht Köln (Administrative Court, Cologne, Germany))

(Common fisheries policy — Conservation of marine biological resources — Protection of the environment — Conservation of natural habitats and of wild fauna and flora — Exclusive competence of the European Union)

1. Does a measure such as a general prohibition of using certain fishing techniques and equipment in protected natural sites, aimed at protecting the whole marine ecosystem, fall, for the purposes of the EU Treaties, within the field of conservation of marine biological resources under the common fisheries policy (‘the CFP’) or within the field of environmental policy?

2. That is, in a nutshell, the key issue raised by the present proceedings.

I. Legal framework

A. Regulation (EU) No 1380/2013

3. Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC ( 2 ) contains provisions aimed at implementing the CFP.

4. Recital 25 of that regulation reads: ‘Directive 2009/147/EC of the European Parliament and of the Council, ( 3 ) Council Directive 92/43/EEC ( 4 ) and Directive 2008/56/EC ( 5 ) impose certain obligations on Member States as regards special protection areas, special areas of conservation and marine protected areas, respectively. Such measures might require the adoption of measures falling under the CFP. It is, therefore, appropriate to authorise Member States to adopt, in the waters under their sovereignty or jurisdiction, such conservation measures that are necessary to comply with their obligations under those Union acts where such measures do not affect the fisheries interests of other Member States. Where such measures might affect fisheries interests of other Member States, the power to adopt such measures should be granted to the Commission and recourse should be had to regional cooperation among the Member States concerned.’

5. Article 4(1) (‘Definitions’) of Regulation No 1380/2013 provides: ‘... (5) “Union fishing vessel” means a fishing vessel flying the flag of a Member State and registered in the Union; … (22) “Member State having a direct management interest” means a Member State which has an interest consisting of either fishing opportunities or a fishery taking place in the exclusive economic zone of the Member State concerned, or, in the Mediterranean Sea, a traditional fishery on the high seas; …’

6. Article 11 (‘Conservation measures necessary for compliance with obligations under Union environmental legislation’) of the same regulation states: ‘1. Member States are empowered to adopt conservation measures not affecting fishing vessels of other Member States that are applicable to waters under their sovereignty or jurisdiction and that are necessary for the purpose of complying with their obligations under Article 13(4) of Directive 2008/56/EC, Article 4 of Directive 2009/147/EC or Article 6 of Directive 92/43/EEC, provided that those measures are compatible with the objectives set out in Article 2 of this Regulation, meet the objectives of the relevant Union legislation that they intend to implement, and are at least as stringent as measures under Union law. 2. Where a Member State (“the initiating Member State”) considers that measures need to be adopted for the purpose of complying with the obligations referred to in paragraph 1 and other Member States have a direct management interest in the fishery to be affected by such measures, the Commission shall be empowered to adopt such measures, upon request, by means of delegated acts in accordance with Article 46. For this purpose, Article 18(1) to (4) and (6) shall apply mutatis mutandis. ...’

B. Directive 92/43

7. Article 6 of Directive 92/43 (commonly referred to as ‘the Habitats Directive’) states: ‘1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the environmental requirements of the natural habitat types in Annex I and the species in Annex II present on the sites. 2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive. ...’

C. Directive 2004/35/CE

8. Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage ( 6 ) establishes a framework based on the polluter pays principle to prevent and remedy environmental damage.

II. Facts, procedure and the questions referred

9. Deutscher Naturschutzring, Dachverband der deutschen Natur- und Umweltschutzverbände e.V. (‘Deutscher Naturschutzring’) is a recognised conservation association authorised to bring legal proceedings in Germany. On 30 July 2014, Deutscher Naturschutzring requested the Bundesamt für Naturschutz (Federal Office for Nature Protection, ‘the Federal Office’) to prohibit, under national law, fishing methods which touch the seabed, and the use of gillnets, in several ‘Natura 2000’ sites ( 7 ) located in the German exclusive economic zone in the North and Baltic Seas (‘the measures at issue in the main proceedings’).

10. According to the referring court, in those sites sea fishing takes place using various fishing practices. Some of those practices involve the use of mobile fishing equipment that touches the seabed, causing damage to reefs and sandbanks, and the use of stationary trammel and gillnets that leads to the by-catch of harbour porpoises and seabirds.

11. The Federal Office first rejected the application by decision of 29 October 2014, and then dismissed Deutscher Naturschutzring’s administrative appeal by decision of 19 December 2014. The Federal Office took the view that it had no power to adopt the measures. According to the Federal Office, those measures fall, in principle, within the exclusive competence of the Union under Article 3(1)(d) TFEU. Insofar as they affect sea fishing by fishing vessels of other Member States in the German exclusive economic zone, measures of that nature should, in the view of the Federal Office, be adopted by the EU institutions in conformity with Articles 11 and 18 of Regulation No 1380/2013

12. On 27 January 2015, Deutscher Naturschutzring brought an action against that decision before the Verwaltungsgericht Köln (Administrative Court, Cologne, Germany). That court, having doubts as to the correct interpretation of the relevant provisions of EU law, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is Article 11 of [Regulation No 1380/2013] to be interpreted as precluding measures of a Member State in respect of waters under its sovereignty or jurisdiction which are necessary in order to fulfil the obligations of a Member State under Article 6 of [Directive 92/43], which have effects on the fishing vessels of other Member States, and by which professional sea fishing by means of fishing equipment that touches the seabed, and gillnets (“trammel and gillnets”) as well, is comprehensively prohibited in Natura 2000 sites? In particular: (a) Is Article 11 of [Regulation No 1380/2013] to be interpreted as meaning that the fishing techniques listed in the first question referred fall within the concept of “conservation measures”? (b) Is Article 11 of [Regulation No 1380/2013] to be interpreted as meaning that fishing vessels of another Member State which sail under the flag of the Federal Republic of Germany also fall within the concept of “fishing vessels of other Member States”? (c) Is Article 11 of [Regulation No 1380/2013] to be interpreted as meaning that such measures adopted by a Member State which merely promote the objectives listed in that Union legislation also fall within the concept of “meet[ing] the objectives of the relevant Union legislation”? (2) Is Article 11 of [Regulation No 1380/2013] to be interpreted as precluding measures of a Member State in respect of waters under its sovereignty or jurisdiction which are necessary in order to comply with its obligations under [Directive 2004/35]? (3) Insofar as Question 1 and Question 2 are to be answered, either individually or cumulatively, in the negative: Does the exclusive competence of the European Union in the field of conservation of marine biological resources under the Common Fisheries Policy pursuant to Article 3(1)(d) of the Treaty on the Functioning of the European Union preclude the adoption of the abovementioned measures by the Member State?’

13. Written observations in the present proceedings have been submitted by Deutscher Naturschutzring, the Federal Office, the Spanish, Polish and Portuguese Governments and the Commission. Deutscher Naturschutzring, the Federal Office, the German, Spanish and Portuguese Governments and the Commission also presented oral argument at the hearing held on 22 November 2017.

III. Analysis

A. The first question referred

14. By its first question, the referring court wishes to know whether Article 11 of Regulation No 1380/2013 must be interpreted as precluding the adoption by a Member State, with respect to waters under its sovereignty or jurisdiction, of measures intended to fulfil the obligations arising from Article 6 of Directive 92/43, where those measures affect fishing vessels of other Member States by prohibiting fishing by means of fishing equipment that touches the seabed, and by gillnets as well. To that end, the referring court asks the Court, in particular, to elucidate the meaning of the terms ‘conservation measures’, ‘fishing vessels of other Member States’ and ‘meet[ing] the objectives of the relevant Union legislation’ included in that provision.

15. In that respect, the Federal Office, the German, Spanish, and Polish Governments and the Commission propose that a positive answer be given to the question. In their view, since measures such as a general prohibition of using certain fishing techniques in Natura 2000 sites are capable of affecting fishing vessels of other Member States, such measures may be adopted by the Commission alone. They argue, in particular, that the concept of ‘conservation measures’ referred to in Article 11 of Regulation No 1380/2013 covers measures such as those at issue in the main proceedings.

16. Conversely, the Portuguese Government and Deutscher Naturschutzring take the view that the question should be answered in the negative. They maintain, in particular, that measures such as those at issue in the main proceedings fall, because of their environmental objective, outside the scope of Regulation No 1380/2013 and, consequently, may be unilaterally adopted by a Member State.

17. In the following, I shall explain why I agree with the former position. To my mind, measures such as those at issue in the main proceedings are, by their very nature, measures falling within the field of conservation of marine biological resources under the CFP. Thus, pursuant to Article 11 of Regulation No 1380/2013, a Member State may not adopt any such measure with respect to areas in its exclusive economic zone, when that measure affects the fisheries rights of other Member States.

1. Introduction: on fisheries policy and environmental policy

18. Pursuant to Article 3(1)(d) TFEU, the Union has exclusive competence for the conservation of marine biological resources under the CFP. Conversely, the other aspects of the CFP and environment fall, in accordance with Article 4(2)(d) and (e) TFEU, within the areas of shared competence of the Union.

19. One of the key arguments put forward by the Portuguese Government and Deutscher Naturschutzring in support of their view is that, since Regulation No 1380/2013 has been adopted on the basis of Article 43(2) TFEU, it may concern only fisheries measures but not also measures adopted to protect the environment.

20. However, a very similar argument has already been dismissed by the Court in Mondiet. ( 8 ) That case required the Court to examine, inter alia, the lawfulness of a provision introducing, for environmental purposes, a prohibition of using certain fishing techniques and equipment included in an EU measure adopted on CFP legal bases.

21. In its judgment, the Court emphasised that the provision in question laid down certain technical measures for the conservation of marine resources and was adopted to protect fishing grounds. The Court did not consider that the fact that the provision in question also served an environmental purpose required an additional legal basis for its adoption. The Court noted that, according to the former Article 130r(2) of the EEC Treaty (now replaced, in substance, by Article 11 TFEU), environmental protection requirements were to be a component of the Community’s other policies. The Court thus held that the mere fact that a Community measure took account of those requirements did not mean that that measure had to be part of the Community’s policy on environmental matters. ( 9 )

22. Those considerations are, in my view, fully transposable to the measures at issue in the main proceedings. The content of those measures concerns, by its very nature, the CFP and especially the conservation of marine biological resources. Those measures would prohibit the use of certain fishing techniques and equipment, thereby regulating the manner in which fishing activities may be carried out in certain areas, and consequently affect the quantities of marine biological resources fished in those areas.

23. It is true that those measures would also affect species other than those subject to fishing and, more generally, the whole ecosystem of the sites. However, that is not enough to bring those measures outside the scope of the CFP. In that regard, it suffices to point out that all animal species — including the marine species subject to fishing — can live, reproduce and thrive only when their ecosystem is sufficiently preserved. Any significant alteration of the living and/or non-living components of a marine ecosystem is liable to have an impact on the fishing stocks in those sites. That is why Regulation No 1380/2013 is intended to implement an ecosystem-based approach to fisheries management, so as to ensure that negative impacts of fishing activities on the marine ecosystem are minimised and avoid, as far as possible, the degradation of the marine environment. ( 10 )

24. Unlike the Portuguese Government, I do not read the Court’s judgment in Kramer and Others ( 11 ) as implying that only measures concerning marine resources that can be commercially exploited fall within the scope of the CFP. Quite apart from the fact that that judgment dates from a period in which the then EEC Treaty did not include any specific provision on environmental matters (let alone one laying down the integration principle currently provided for in Article 11 TFEU ( 12 )), the Court merely stated that what is decisive for a conservation measure to belong to the CFP is whether, in the long term, that measure is necessary ‘to ensure a steady, optimum yield from fishing’. ( 13 ) For the reasons explained in the preceding point, I consider that requirement to be fulfilled by the measures at issue in the main proceedings.

25. This interpretation is borne out by recital 25 of Regulation No 1380/2013 which acknowledges that Directives 2009/147, 92/43 and 2008/56 impose certain obligations on Member States as regards special protection areas and, in order to fulfil those obligations, Member States may find it necessary to adopt ‘measures falling under the CFP’.

26. After all, the idea underlying Article 3(1)(d) TFEU is that the exercise of weighing the purely economic aim of the optimal exploitation of marine resources against the more environmentally-oriented aim of conservation and durable management of those resources and, as a consequence, of the entire marine ecosystems, should be undertaken at EU level. If the Member States were able to unilaterally adopt measures that could immediately and directly affect the ‘where, how and how much’ of the fishing activities that can be carried out, the effectiveness and coherence of the CFP would be thwarted, giving rise to fragmentation and distortion of the EU-wide market.

27. Importantly, it should be borne in mind that, according to settled case-law, an EU measure that pursues a twofold purpose or that has a twofold component must be founded on a single legal basis — namely, that required by the main or predominant purpose or component — if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental. ( 14 ) Therefore, the fact that Regulation No 1380/2013 is based on Article 43(2) TFEU only, does not mean that it may not contain provisions, of an ancillary nature, that because of their content or purpose pertain to (or merely affect) other EU policies, for example environment. That is all the more true with respect to provisions that, like Article 11 of Regulation No 1380/2013, are meant to govern the relationship between instruments adopted in different fields of activity of the Union.

28. Thus, even if a provision such as Article 11 of Regulation No 1380/2013 were to be considered to have a mainly environmental content, or to pursue primarily an environmental purpose, that would not mean that it could not be included in a legal instrument based only on the fisheries legal basis. Indeed, it could be regarded as a provision of an ancillary nature, concerned with environment, lawfully included in an instrument pursuing broader objectives of fisheries policy.

29. That does not mean, obviously, that a provision equivalent or similar to Article 11 of Regulation No 1380/2013 could not be included in an instrument pursuing a broader environmental objective, and thus based (only or also) on Article 192 TFEU. In other words, measures such as those envisaged by Deutscher Naturschtuzring may well be designed to protect the marine ecosystem as a whole (and not only or mainly marine resources that are commercially exploitable), but that does not mean that they are not validly governed by Article 11 of Regulation No 1380/2013. If that provision is lawful — and no party has argued that it is not — then I do not see how the rules in that provision can be disregarded.

30. In the light of the above, the measures at issue in the main proceedings fall within the ambit of the CFP, and in particular of the conservation of marine biological resources, and not within the scope of the Union’s environmental policy. Since the former is an area of exclusive competence of the Union, those measures may be adopted only by the EU institutions, unless the Union delegates power to the authorities of the Member State to do so or authorises them to do so.

31. It is against this background that I shall address the specific issues raised by the referring court. Even if, as the Federal Office argues, some of those issues are not decisive for the answer to be given to the first question referred, I shall nonetheless examine all of them for the sake of completeness.

2. The concept of ‘conservation measures’

32. Article 7 of Regulation No 1380/2013 provides a non-exhaustive list of measures which are to be regarded as ‘conservation measures’ for the purposes of that regulation. Those measures include ‘measures necessary for compliance with obligations under Union environmental legislation adopted pursuant to Article 11’. ( 15 ) They also include ‘technical measures’ such as ‘characteristics of fishing gears and rules concerning their use’, ‘specifications on the construction of fishing gear’, and‘limitations or prohibitions on the use of certain fishing gears, and on fishing activities, in certain areas or periods’. ( 16 ) The concept of ‘technical measure’ is also defined in Article 4(1), point 20 of the regulation as any ‘measure that regulates the composition of catches by species and size and the impacts on components of the ecosystems resulting from fishing activities by establishing conditions for the use and structure of fishing gear and restrictions on access to fishing areas’.

33. It thus stems from the very wording of Regulation No 1380/2013 that measures such as those at issue in the main proceedings — regulating and prohibiting the use of certain fishing techniques and equipment — fall within the concept of ‘conservation measures’ for the purposes of that regulation.

3. The concept of ‘fishing vessels of other Member States’

34. Next, the referring court asks the Court to clarify the meaning of the terms ‘fishing vessels of other Member States’.

35. In that regard, I observe that, first, Article 4(1) point 5 of Regulation No 1380/2013 defines EU fishing vessels by reference to both the flag being flown by the vessel and the country of registration of the latter. Second, Article 19 of the same regulation, which concerns Member States’ measures for the conservation of fishing stocks in EU waters, also refers to fishing vessels flying the flag of the Member State concerned. Third, a reference to those two requirements seems to stem also from Article 24(1) of the regulation, according to which ‘Member States shall record the information on ownership, on vessel and gear characteristics and on the activity of EU fishing vessels flying their flag that is necessary for the management of measures established under this Regulation’. Therefore, Regulation No 1380/2013 seems to take as a reference for the nationality of a vessel both its flag and the place of its registration.

36. Importantly, the two concepts should, as a rule, coincide. Indeed, according to Article 91 (‘Nationality of ships’) of the United Nations Convention on the Law of the Sea, ( 17 )‘every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly’. Article 94 (‘Duties of the flag State’) of that convention also adds that every State is to ‘effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’ and, in particular, ‘maintain a register of ships containing the names and particulars of ships flying its flag’, and ‘assume jurisdiction under its internal law over each ship flying its flag … in respect of administrative, technical and social matters concerning the ship’. In conformity with those rules of public international law, the Court has consistently held that a vessel must, in principle, have only one nationality, that of the State in which it is registered. ( 18 )

37. Accordingly, the terms ‘fishing vessels of other Member States’ in Article 11 of Regulation No 1380/2013 should be understood as referring to vessels registered in — and thus flying the flag of — Member States other than that which has sovereignty or jurisdiction on the waters concerned.

38. In this context, I would like to add that, in the scheme of Article 11 of Regulation No 1380/2013, the nationality of the vessels affected by the conservation measures necessary to comply with EU environmental legislation is a crucial element. Indeed, under paragraph 1 of that provision, conservation measures that affect national vessels alone may be adopted by the Member State concerned on its own initiative, provided that the relevant conditions are fulfilled. Conversely, conservation measures that may also affect vessels of other Member States should be adopted by the Commission, in accordance with the specific procedures laid down in Article 11(2) to (6) and Article 18 of Regulation No 1380/2013. ( 19 )

39. This requirement of influence on other Member States’ vessels is specified by Article 11(2) of Regulation No 1380/2013, that refers to ‘other Member States [that] have a direct management interest in the fishery to be affected by [the relevant] measures’. That expression is, in turn, defined by Article 4(1), point 22, of Regulation No 1380/2013 as follows: “‘Member State having a direct management interest” means a Member State which has an interest consisting of either fishing opportunities or a fishery taking place in the exclusive economic zone of the Member State concerned …’.

40. From this provision it follows that, as the Federal Office and the Commission correctly point out, action on the part of the Commission under Article 11(2) of Regulation No 1380/2013 is, as a rule, required when the conservation measures affect other Member States’ vessels that fish in the site concerned or that, despite not (or not yet) fishing in the site concerned, have the right to do so.

4. The concept of ‘meet[ing] the objectives of the relevant Union legislation’

41. Finally, the referring court also asks the Court to clarify the concept of ‘meet[ing] the objectives of the relevant Union legislation’ under Article 11(1) of Regulation No 1380/2013. In particular, the national court inquires as to whether that expression implies that the conservation measures in question must, by themselves, be sufficient to achieve the objectives of the relevant EU legislation or, instead, it is sufficient that they simply contribute towards the attainment of those objectives.

42. The issue raised by this question is, probably, more terminological than substantive.

43. It seems to me that when one or more specific measures are taken with a view to protecting the environment, only rarely may the authorities be certain that the objectives pursued will be fully and surely achieved by dint of those very measures. Indeed, it is often difficult to evaluate the effectiveness of envisaged measures ex ante, and a more or less successful outcome may depend on a variety of factors, some of which cannot be entirely controlled or anticipated. That is all the more true when an action is deemed necessary in order to deal with phenomena the causes of which may be numerous, diverse and perhaps even the subject of some controversy from a scientific point of view. Moreover, environmental goals are frequently long-term objectives that can be achieved only by means of a multitude of measures that may need to be adapted over time, depending on the evolution of the situation.

44. It is true that Article 11(1) of Regulation No 1380/2013 also speaks of conservation measures ‘that are necessary’ to comply with EU environmental legislation, ( 20 ) which may give the impression that the measures covered by this provision are only those that are indispensable for the attainment of the stated goals.

45. That term may, however, be explained by reference to the fact that Article 11(1) of Regulation No 1380/2013 requires Member States to strike a balance between two, at times competing, sets of objectives: the CFP’s objectives (as enounced in Article 39 TFEU and Article 2 of Regulation No 1380/2013) and the environmental objectives pursued by the EU provisions referred to in Article 11(1).

46. The need for Member States to carry out such a balancing exercise becomes evident when all the conditions laid down in Article 11(1) for the adoption of conservation measures by the Member States are examined together. On the one hand, that provision states that the measures must be ‘compatible with objectives set out in Article 2 of [that] Regulation’. On the other hand, that provision adds that those measures must also be capable of ‘meet[ing] the objectives of the relevant Union legislation that they intend to implement’.

47. In other words, Article 11(1) of Regulation No 1380/2013 requires Member States to subject the measures envisaged to a test of proportionality. One key passage of that test is, according to settled case-law, ( 21 ) the verification that those measures are appropriate and necessary — intended as measures likely to make a positive and not insignificant contribution — for the achievement of the environmental objectives pursued by Article 13(4) of Directive 2008/56, Article 4 of Directive 2009/147 and Article 6 of Directive 92/43.

48. Therefore, the concept of ‘meet[ing] the objectives of the relevant Union legislation’ under Article 11(1) of Regulation No 1380/2013 means that the conservation measures in question must make a positive and not insignificant contribution towards the achievement of the environmental objectives pursued by the provisions referred to therein.

5. Conclusion on the first question

49. Concluding on this issue, I would emphasise again that the measures at issue in the main proceedings fall, by their very nature, within the ambit of Article 11 of Regulation No 1380/2013. It is undeniable that: (i) the measures at issue in the main proceedings are regarded, at least by Deutscher Naturschutzring, as necessary to fulfil the obligations laid down in Article 6 of Directive 92/43; and that (ii) those measures are, by prohibiting certain fishing techniques for all vessels fishing in certain protected sites, capable of affecting the fisheries interests of Member States others than Germany. ( 22 )

50. In the light of that, I take the view that the Court should answer the first question to the effect that, on a proper construction, Article 11 of Regulation No 1380/2013 precludes the adoption by a Member State, in respect of waters under its sovereignty or jurisdiction, of measures intended to fulfil the obligations arising from Article 6 of Directive 92/43, when those measures affect fishing vessels of other Member States by prohibiting fishing by means of fishing equipment that touches the seabed, and gillnets as well.

B. The second question referred

51. By its second question, the referring court asks whether Article 11 of Regulation No 1380/2013 precludes measures of a Member State in respect of waters under its sovereignty or jurisdiction which are necessary in order to fulfil its obligations under Directive 2004/35.

52. This question, as formulated by the referring court, appears too vague and, as a matter of fact, cannot be properly answered. Clearly, Article 11 of Regulation No 1380/2013 cannot be interpreted as precluding the adoption, by a Member State in respect of waters under its sovereignty or jurisdiction, of any measure whatsoever which may be deemed necessary in order to fulfil its obligations under Directive 2004/35.

53. The question thus needs to be reformulated. In essence, by its second question, the referring court wishes to know whether Article 11 of Regulation No 1380/2013 precludes measures of a Member State in respect of waters under its sovereignty or jurisdiction, such as those at issue in the main proceedings, even if deemed necessary to fulfil its obligations under Directive 2004/35.

54. At the outset, I must confess that it is not at all clear to me how measures such as those at issue in the main proceedings may be considered necessary in order for Germany to fulfil the obligations stemming from Directive 2004/35.

55. The fundamental principle of that directive is that an operator whose activity has caused environmental damage or the imminent threat of such damage is to be held financially liable, in order to induce operators to adopt measures and develop practices to minimise the risks of environmental damage so that their exposure to financial liabilities is reduced. To that end, Directive 2004/35 is intended to establish a common framework for the prevention and remedying of environmental damage at a reasonable cost to society. ( 23 )

56. Importantly, the directive explains, in recital 13, that ‘not all forms of environmental damage can be remedied by means of the liability mechanism [established thereby]. For the latter to be effective, there need to be one or more identifiable polluters, the damage should be concrete and quantifiable, and a causal link should be established between the damage and the identified polluter(s). Liability is therefore not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link the negative environmental effects with acts or failure to act of certain individual actors’.

57. Yet, the type of damage that Deutscher Naturschutzring intends to prevent through the adoption of the measures at issue in the main proceedings appears to be precisely one of widespread and diffuse character. Deutscher Naturschutzring’s arguments seem based on the premiss that any use of the fishing techniques and equipment contested is inevitably provoking some damage to the marine ecosystem of the protected sites.

58. In addition, the key substantive obligations arising from the provisions of Directive 2004/35 are for economic operators, rather than Member States’ authorities.

59. In that regard, however, Deutscher Naturschutzring invokes Articles 12 and 13 of the directive, which essentially require Member States to put in place (i) administrative procedures allowing interested persons to request the Member States’ competent authorities to take action under that directive in presence of environmental damage or an imminent threat of such damage, and (ii) review procedures permitting those persons to challenge the authorities’ action or inaction. Nevertheless, as recitals 24 to 26 make clear, those procedures should be understood as means of implementation or enforcement of the directive. In other words, the scope of those procedures remains confined to the subject matter of Directive 2004/35 which, as provided for in Article 1 thereof, is to establish a framework of environmental liability based on the ‘polluter-pays’ principle.

60. There is thus no basis for interpreting Articles 12 and 13 of Directive 2004/35 as obliging Member States to set up a system of administrative and review procedures enabling individuals to ask the authorities to intervene regarding any human activity which may have any type of effect on the environment.

61. I also have doubts that Directive 2004/35 could be applicable in the case at hand by virtue of Article 5, which permits Member States, in certain circumstances, to require operators to take ‘necessary preventive measures’. Preventive measures can be ordered only ‘in response to an event, act or omission that has created an imminent threat of environmental damage’. ( 24 ) Moreover, that damage should, as mentioned above, be ‘concrete and quantifiable’ and attributable to one or more ‘identifiable polluter(s)’.

62. In any event — despite the issue of the applicability of Directive 2004/35 to a situation such as that in the main proceedings — I take the view that the answer to the second question referred derives from the answer proposed to the first question. If the measures at issue in the main proceedings must, by their very nature, be attributed to the field of conservation of marine biological resources under the CFP, those measures may be adopted only if and when allowed by the CFP rules. Article 11 of Regulation No 1380/2013 is the key provision in that regard.

63. However, Article 11 of Regulation No 1380/2013 states that, insofar as they affect also fishing vessels of other Member States, only the Commission is empowered to adopt such measures. Moreover, the conservation measures which may be adopted under Article 11 are only those that are necessary to fulfil the obligations laid down in three specific provisions of EU environmental laws: Article 13(4) of Directive 2008/56, Article 4 of Directive 2009/147 and Article 6 of Directive 92/43. No provision of Directive 2004/35 is mentioned in Article 11 of Regulation No 1380/2013.

64. As the Commission points out, there is no indication that such a list of legal provisions should be considered merely indicative. On the contrary, the wording of Article 11 of Regulation No 1380/2013 suggests that the list is exhaustive. Indeed, mentioning only those three provisions (and not others) would have been an odd choice had the EU legislature intended to introduce a more general clause governing the relationship between the CFP and the whole of EU environmental legislation.

65. Moreover, Article 11(1) of Regulation No 1380/2013 cannot, in my opinion, be applied by analogy to measures which appear necessary to comply with other provisions of EU environmental laws. By empowering the Member States exceptionally to act in an area that falls under the exclusive competence of the Union, that provision constitutes the exception to a general rule and should be interpreted narrowly. ( 25 )

66. For these reasons, I take the view that Article 11 of Regulation No 1380/2013 must be interpreted as precluding measures of a Member State in respect of waters under its sovereignty or jurisdiction, such as those at issue in the main proceedings, even if deemed necessary to fulfil its obligations under Directive 2004/35.

C. The third question referred

67. Since the third question was put only in the event that the answer to the first and/or second question would be in the negative, there is no need to answer it. It is, after all, abundantly clear from the above that the measures at issue in the main proceedings fall, by their very nature, within the field of conservation of marine biological resources under the CFP and thus, pursuant to Article 3(1)(d) TFEU, within the exclusive competence of the Union.

68. Therefore, failing any express provision of EU law that authorises or delegates Member States to adopt such measures, they do not have such power.

IV. Conclusion

69. In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Verwaltungsgericht Köln (Administrative Court, Cologne, Germany) as follows: – Article 11 of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC precludes the adoption by a Member State, in respect of waters under its sovereignty or jurisdiction, of measures intended to fulfil the obligations arising from Article 6 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, where those measures affect fishing vessels of other Member States by prohibiting fishing by means of fishing equipment that touches the seabed, and gillnets as well; – measures such as the prohibition of fishing by means of fishing equipment that touches the seabed, and gillnets as well, fall within the concept of ‘conservation measures’ for the purposes of Article 11 of Regulation No 1380/2013; – the terms ‘fishing vessels of other Member States’ in Article 11 of Regulation No 1380/2013 refer to vessels registered in — and thus flying the flag of — Member States others than that which has sovereignty or jurisdiction on the waters concerned; – the terms ‘meet[ing] the objectives of the relevant Union legislation’ under Article 11(1) of Regulation No 1380/2013 mean that the conservation measures must make a positive and not insignificant contribution towards the achievement of the environmental objectives pursued by the provisions referred to therein; – Article 11 of Regulation No 1380/2013 precludes measures of a Member State in respect of waters under its sovereignty or jurisdiction, such as those at issue in the main proceedings, even if deemed necessary in order for the Member state to fulfil its obligations under Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage.

( 1 ) Original language: English.

( 2 ) OJ 2013 L 354, p. 22.

( 3 ) Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7).

( 4 ) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

( 5 ) Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) (OJ 2008 L 164, p. 19).

( 6 ) OJ 2004 L 143, p. 56.

( 7 ) See Article 3(1) of Directive 92/43: ‘A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.’

( 8 ) Judgment of 24 November 1993, Mondiet, C‑405/92, EU:C:1993:906.

( 9 ) Judgment of 24 November 1993, Mondiet, C‑405/92, EU:C:1993:906, paragraphs 17 to 28. See also Opinion of Advocate General Gulman in the same case, EU:C:1993:822, points 12 to 17. Those principles have also been confirmed in subsequent case-law of the Court: see, for example, judgment of 19 September 2002, Huber, C‑336/00, EU:C:2002:509, paragraph 33.

( 10 ) See especially Article 2(3), Article 4(1)(9) and recital 13 of Regulation No 1380/2013.

( 11 ) Judgment of 14 July 1976, Kramer and Others, 3/76, 4/76 and 6/76, EU:C:1976:114.

( 12 ) That principle was first introduced in the Treaties by the Single European Act in the abovementioned Article 130r(2) of the EEC Treaty.

( 13 ) Judgment of 14 July 1976, Kramer and Others, 3/76, 4/76 and 6/76, EU:C:1976:114, paragraphs 56 to 59.

( 14 ) See judgment of 11 June 2014, Commission v Council, C‑377/12, EU:C:2014:1903, paragraph 34 and the case-law cited.

( 15 ) Article 7(1)(i) of Regulation No 1380/2013.

( 16 ) Article 7(2)(a), (b) and (c) of Regulation No 1380/2013.

( 17 ) Done at Montego Bay 10 December 1982, and entered into force on 16 November 1994. See Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof (OJ 1998 L 179, p. 1).

( 18 ) See, in particular, judgments of 24 November 1992, Poulsen and Diva Navigation, C‑286/90, EU:C:1992:453, paragraph 13, and of 2 December 1992, Commission v Ireland, C‑280/89, EU:C:1992:481, paragraph 24.

( 19 ) See also recital 25 of Regulation No 1380/2013.

( 20 ) Emphasis added.

( 21 ) The Court has consistently stated that the principle of proportionality requires that measures adopted by EU institutions, or by Member States acting in the field of EU law, do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; 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. See, for example, judgment of 14 June 2017, TofuTown.com, C‑422/16, EU:C:2017:458, paragraph 45 and the case-law cited.

( 22 ) The latter element was again confirmed at the hearing by the German Government.

( 23 ) See recitals 2 and 3 of that directive.

( 24 ) Article 2(10) of the directive (emphasis added).

( 25 ) The fact that it is the Union that gives the Member States the power to adopt the measures referred to in Article 11(1) of Regulation No 1380/2013 becomes even more evident if the German version of the regulation is compared with other language versions thereof. Whereas the German version speaks of ‘die Mitgliedstaaten haben das Recht’ (Article 11(1)) and ‘die Mitgliedstaaten … zu ermächtigen’ (recital 25), versions such as, for example, the English, Spanish, French and Italian are explicit that it is the Union that authorises the Member States to act.