Case T-265/23: Action brought on 11 May 2023 — VDK v Commission
Date: 2023-05-11
Institutions: General Court
Subjects: Germany, North Sea, biotope, conservation of fish stocks, conservation of resources, fishing area, fishing rights, marine environment, principle of proportionality, protected area








C_2023235EN.01006902.xml










3.7.2023   


EN


Official Journal of the European Union


C 235/69






Action brought on 11 May 2023 — VDK v Commission
(Case T-265/23)
(2023/C 235/83)
Language of the case: German

Parties


Applicant: Verband der Deutschen Kutter- und Küstenfischer e.V. (VDK) (Hamburg, Germany) (represented by: M. Waller, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






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annul Commission Delegated Regulation (EU) 2023/340 of 8 December 2022 amending Delegated Regulation (EU) 2017/118 as regards conservation measures in Sylter Aussenriff, Borkum-Riffgrund, Doggerbank and Östliche Deutsche Bucht, and in Klaverbank, Friese Front and Centrale Oestergronden; (1)











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order the defendant to pay the costs.





Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.






1.


First plea in law, alleging infringement of the Treaties
According to the applicant, the contested regulation infringes the principle of proportionality defined in Article 5(4) of the EU Treaty. In particular:






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The contested regulation does not pursue a legitimate aim with regard to the protection of the habitat type ‘reefs’ (Code 1170) sought by that regulation. The definition adopted by Germany of the habitat type ‘reef’ listed in Annex I to the Habitats Directive is too imprecise. The Commission erred in failing to seek clarification of that definition.










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The areas covered by the fishing restrictions imposed by the contested regulation were drafted too broadly and go beyond what is necessary to protect the habitats.










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In so far as the purpose of the regulation is the protection of the biotope type ‘Species-rich gravel, coarse sand and shell-gravel areas in marine and costal areas’, the applicant submits that the need for restrictions on fishing to protect that biotope type has not been established.










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An assessment of the appropriateness of the restrictions on fishing laid down in the contested regulation is not at all possible, since the technical basis for the management measures submitted by Germany is already deficient. The Commission erred in failing to seek clarification in that regard.










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In addition, there are exceptions to certain catch limitations on the eastern part of the Sylter Aussenriff for traditional shrimp fishing but not for other fishing techniques which have a comparably minor impact on habitats.










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Furthermore, the closure of 55 % of the Amrum Bank cannot be justified, at least with regard to shrimp fishing. The effects of shrimp fishing on sandy subsoils have been sufficiently examined in various research projects. To that extent, significant effects on the sandbank habitat are precluded.










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There does not appear to be a technical basis for exempting a part of the Sylter Aussenriff from fishing restrictions, which calls into question the fishing restrictions for the whole area.














2.


Second plea in law, alleging lack of competence
In the applicant’s view, in so far as the purpose of the contested delegated regulation is the protection of the biotope type ‘Species-rich gravel, coarse sand and shell-gravel areas’, it does not fall within the competence framework under Article 11(2) of Regulation (EU) No 1380/2013 (2) in conjunction with Article 13(4) of Directive 2008/56/EC, (3) since that biotope type is not integrated into a national programme of measures, nor is it covered by the protected areas referred to in Article 13(4) of Directive 2008/56/EC.






(1)  OJ 2023 L 48, p. 1.

(2)  Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ 2013 L 354, p. 22).

(3)  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).