CELEX: 62008CC0453
Language: en
Date: 2010-04-29 00:00:00
Title: Opinion of Mr Advocate General Mazák delivered on 29 April 2010. # Panagiotis I. Karanikolas and Others v Ypourgos Agrotikis Anaptyxis kai Trofimon and Nomarchiaki Aftodioikisi Dramas, Kavalas, Xanthis. # Reference for a preliminary ruling: Symvoulio tis Epikrateias - Greece. # Common fisheries policy - Fisheries in the Mediterranean - Regulation (EC) No 1626/94 - Article 1(2) and (3) - Prohibition of the use of certain types of fishing net - Measures supplementary to or going beyond the minimum requirements of that regulation which were adopted before its entry into force - Conditions of validity. # Case C-453/08.

OPINION OF ADVOCATE GENERAL
      MAZÁK 
      delivered on 29 April 2010 (1)
      
      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. (2) 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, (3) 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[ (4)].
      
      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 (5) 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 (6) 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, (7) of any plans to introduce or amend national conservation and resource management measures. (8)
      
      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[ (9)] 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. (10)
      
      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, (11) 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, (12) sets out in an exhaustive manner the fishing gear which is prohibited in the Mediterranean (13) 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. (14)
      
      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. (15)
      
      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. (16)
      
      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. (17)
      
      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, (18) 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. (19)
      
      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. (20) 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. (21)
      
      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. (22) 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. (23)
      
      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, (24) 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.
      
      1 –	Original language: English.
      
      2 –	OJ 1994 L 171, p. 1.
      
      3 –	OJ 2002 L 358, p. 59.
      
      4 –	OJ 1994 L 171, p. 7.
      
      5 –	See by contrast for example the fishing gear contained in Article 2 of Regulation No 1626/94.
      
      6 –	See by analogy Articles 9 and 10 of Regulation No 2371/2002. 
      
      7 –	OJ 1986 L 288, p. 1.
      
      8 –	Codified in Council Regulation (EC) No 894/97 of 29 April 1997 laying down certain technical measures for the conservation
         of fishery resources (OJ 1997 L 132, p. 1).
      
      9 –	The term ‘amend’ is indicative of the aim of maintaining pre-existing national supplementary measures.
      
      10 –	See, inter alia, Case C‑136/04 Deutsches Milch-Kontor [2005] ECR I‑10095, paragraph 32 and the case-law cited.
      
      11 – 	COM(92) 533 final, OJ 1993 C 306, p. 10. 
      
      12 –	See for example Articles 2, 3(1) and 3(1a) of Regulation No 1626/94.
      
      13 –	The relevant geographical scope of Regulation No 1626/94 is defined in Article 1(1) of that regulation.
      
      14 –	See Case 204/87 Bekaert [1988] ECR 2029, paragraph 5.
      
      15 –	See by analogy Case C‑496/04 Slob [2006] ECR I‑8257, paragraphs 39 to 41.
      
      16 –	See Article 2 of Regulation No 2371/2002.
      
      17 –	See, in particular, Case C‑44/94 National Federation of Fishermen’s Organisations and Others [1995] ECR I‑3115, paragraph 46.
      
      18 –	See point 25 above.
      
      19 –	See by analogy, Case C‑535/03 Unitymark and North Sea Fishermen’s Organisation [2006] ECR I‑2689, paragraph 63, and Case C‑34/08 Azienda Agricola Disarò Antonio and Others [2009] ECR I‑0000, paragraphs 69 and 70. Thus while the fourth recital in the preamble to Regulation No 1626/94 does indeed
         state that the coastal zone should be reserved to the most selective gear used by small-scale fishermen, that does not necessarily
         prevent a Member State from prohibiting a particular type of gear used by such fishermen where it is established that the
         prohibition is based on objective criteria in conformity with Community law and the common fisheries policy.
      
      20 –	See Joined Cases C‑13/91 and C‑113/91 Debus [1992] ECR I‑3617, paragraph 16, and Case C‑180/96 United Kingdom v Commission [1998] ECR I‑2265, paragraph 96.
      
      21 –	See by analogy Case C‑510/99 Tridon [2001] ECR I‑7777, paragraph 58.
      
      22 –	See, by analogy, Article 2(1) of Regulation No 2371/2002 which requires the Community to adopt a precautionary approach
         in taking measures designed to protect and conserve living aquatic resources, and United Kingdom v Commission, cited in footnote 20, paragraph 99.
      
      23 –	See points 18 and 19 above. 
      
      24 –	A limitation on catches could be achieved, inter alia, by limiting the number of licences attributed for fishing with sardine
         nets provided that the attribution is conducted in a transparent, non-discriminatory manner.