CELEX: 62008CJ0453
Language: en
Date: 2010-09-02 00:00:00
Title: Judgment of the Court (Second Chamber) of 2 September 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.

Case C-453/08
      Panagiotis I. Karanikolas and Others
      v
      Ypourgos Agrotikis Anaptyxis kai Trofimon
      and
      Nomarchiaki Aftodioikisi Dramas, Kavalas, Xanthis
      (Reference for a preliminary ruling from the Simvoulio tis Epikratias)
      (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)
      
      Summary of the Judgment
      Fisheries – Conservation of the resources of the sea – Technical conservation measures – Fisheries in the Mediterranean –
            Regulation No 1626/94
      (Council Regulation No 1626/94, Arts 1(2) and 3)
      Article 1(2) and Article 1(3) of Regulation No 1626/94 laying down certain technical measures for the conservation of fishery
         resources in the Mediterranean, as amended by Regulation No 2550/2000, must be interpreted as meaning, firstly, that the entry
         into force of that regulation does not affect the validity of a supplementary national measure, a prohibition, which was adopted
         before that entry into force and, secondly, that those provisions do not preclude such a measure, provided that that prohibition
         is in conformity with the common fisheries policy, that it does not go beyond what is necessary to achieve the objective pursued
         and that it is not contrary to the principle of equal treatment.
      
      (see para. 58, operative part)
JUDGMENT OF THE COURT (Second Chamber)
      2 September 2010 (*)
      
      (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)
      
      In Case C‑453/08,
      REFERENCE for a preliminary ruling under Article 234 EC from the Simvoulio tis Epikratias (Greece), made by decision of 3
         September 2008, received at the Court on 17 October 2008, in the proceedings
      
      Panagiotis I. Karanikolas and Others
      v
      Ipourgos Agrotikis Anaptixis kai Trofimon,
      Nomarkhiaki Aftodioikisi Dramas, Kavalas, Xanthis,
      intervening parties:
      Alieftikos Agrotikos Sinetairismos gri-gri nomou Kavalas (Makedonia),
      Panellinia Enosi Ploioktiton Mesis Alieias (PEPMA),
      THE COURT (Second Chamber),
      composed of J.N. Cunha Rodrigues, President of the Chamber, P. Lindh (Rapporteur), A. Rosas, A. Ó Caoimh and A. Arabadjiev,
         Judges,
      
      Advocate General: J. Mazák,
      Registrar: L. Hewlett, Principal Administrator,
      having regard to the written procedure and further to the hearing on 19 November 2009,
      after considering the observations submitted on behalf of:
      –        Mr Karanikolas and Others, by A. Charokopou, dikigoros,
      –        Alieftikos Agrotikos Sinetairismos gri-gri nomou Kavalas (Makedonia), by M. Filippidou, dikigoros,
      –        the Greek Government, by I. Chalkias and A. Vasilopoulou, acting as Agents,
      –        the Italian Government, by I. Bruni, acting as Agent, assisted by F. Arena, avvocato dello Stato,
      –        the Commission of the European Communities, by E. Tserepa-Lacombe and A. Szmytkowska, acting as Agents,
      after hearing the Opinion of the Advocate General at the sitting on 29 April 2010,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the interpretation of Article 1(2) and (3) 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
         (OJ 1994 L 171, p. 1), as amended by Council Regulation (EC) No 2550/2000 of 17 November 2000 (OJ 2000 L 292, p. 7) (‘Regulation
         No 1626/94’).
      
      2        The reference has been made in proceedings between, on the one hand, Mr Karanikolas, 18 other fishermen, and the Coastal Fisheries
         Cooperative of Kavala and, on the other, the Ipourgos Agrotikis Anaptixis kai Trofimon (Ministry of Rural Development and
         Food) and the Nomarkhiaki Aftodioikisi Dramas, Kavalas, Xanthis (Prefectorial Authority for Drama, Kavala and Xanthi), concerning
         the refusal, on the basis of national legislation prohibiting the grant of permits for fishing using small encircling nets,
         to grant fishing permits.
      
       Legal context
       European Union legislation (‘EU legislation’)
       Regulation (EC) No 2371/2002
      3        In Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries
         resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59), Article 1, which is entitled ‘Scope’, provides as follows:
      
      ‘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 Community waters or by Community 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.’
      4        Article 2 of that regulation, which is 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 ecosystems. It shall aim at a progressive implementation of an ecosystem-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.’
      
      5        Article 4(1) of that regulation provides as follows:
      
      ‘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.’ 
      
       Regulation No 1626/94
      6        The second, fourth and eighth recitals in the preamble to Regulation No 1626/94 state:
      
      ‘Whereas, however, 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’.
      
      7        Article 1 of that regulation provides as follows:
      
      ‘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 5º 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.
      
      When adopting such measures, Member States shall pay attention [to] the conservation of fragile or endangered species or environments
         …
      
      3.      The Commission shall be informed … of any plans to introduce or amend national conservation and resource management measures.’
      8        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.’
      
      9        Paragraphs 1, 1a and 4 of Article 3 of that regulation provide:
      
      ‘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.
      
      1a.      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 “gangue”, 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 [OJ 1994 L 171, p. 7].
      
      These measures shall be communicated to the Commission before 31 December 2000.
      …
      4.      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.’
      
      10      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.’
      
      11      Under Annex II to that regulation, the length of the netting of encircling nets is restricted to 800 m and the drop to 120 m.
      
      12      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.
      
      …’ 
      13      Annex III to that regulation sets the minimum mesh size for encircling nets at 14 mm.
      
      14      Regulation No 1626/94 was repealed by Council Regulation (EC) No 1967/2006 of 21 December 2006 (OJ 2006 L 409, p. 9).
      
       National legislation
      15      According to the Simvoulio tis Epikratias, the national legislation at issue in the case before it has gone through a number
         of successive stages.
      
      16      The Royal Decree of 15 August 1958 regulating fishing with small encircling nets (FEK A’ 132) authorised fishing for all species
         using small encircling nets, while imposing maximum dimensions for the length and drop of those nets and minimum mesh sizes
         for their netting. That decree also fixed the times of year and the times of day at which those nets could be used.
      
      17      Presidential Decree 587/1984 (FEK A’ 210) provided that all permits granted to fishing vessels using small encircling nets
         would cease to be valid after 31 December 1986.
      
      18      Presidential Decree 542/1985 (FEK A’ 191) repealed Presidential Decree 587/1984 and confirmed that permits for fishing with
         small encircling nets would no longer be valid after 31 December 1986. In addition, Presidential Decree 542/1985 prohibited
         the future grant of fishing permits to vessels using small encircling nets. 
      
      19      That prohibition was subject to a temporary exception. Presidential Decree 526/1988 (FEK A’ 237) excluded from the provisions
         of Presidential Decree 542/1985 fishing permits for the use of garfish (Belone belone) nets. Those permits were granted only for the fishing of garfish and Atlantic saury (Scomberesox saurus saurus) and their validity remained conditional upon compliance with the conditions relating to the technical characteristics of
         the nets and to the fishing seasons. Subsequently, Presidential Decree 320/1997 (FEK A’ 224) repealed Presidential Decree
         526/1988 with effect from 31 December 1998 and laid down that the grant of fishing permits for use of garfish nets was prohibited
         from then on and that all permits issued for that purpose would cease to be valid after that date.
      
      20      According to the Simvoulio tis Epikratias, it follows from that legislation that the grant of permits to use small encircling
         nets has been prohibited since 1 January 1987 for all species of fish and that the issue of permits, to fish for garfish and
         Atlantic saury only, was possible only between 26 October 1988 and 31 December 1998.
      
       The dispute in the main proceedings and the questions referred
      21      The fishing gear in question on which the national legislation focuses is a small encircling net. That type of net is used
         to fish for small pelagic species such as mackerel and sardine. The technique consists in encircling the shoal of fish with
         the net and closing the bottom part using purse lines to transform it into a bag in order to hold all the encircled fish.
         In Greece, it appears that fishermen use several types of small encircling net, that is to say, those for sardine and shad
         and those for garfish and Atlantic saury. Nets of the latter type are shorter, with a shorter drop and a smaller mesh. In
         addition, there are large purse seines used to fish for sardine, known as ‘gri-gri’, which are not covered by the prohibition.
      
      22      On 20 May 2003, Mr Karanikolas and 18 other professional fishermen and owners of fishing vessels resident in Kavala applied,
         together with the Kavala Coastal Fisheries Cooperative of which they are members, for permits for fishing sardine using small
         encircling nets, subject to the restrictions laid down in Regulation No 1626/94 and the technical characteristics specified
         in that regulation for the nets.
      
      23      The application was addressed to Nomarchiaki Aftodioikisi Dramas, Kavalas, Xanthis, which sought information from the Ipourgos
         Agrotikis Anaptixis kai Trofimon as to whether such permits could be granted. By document No 172 603 of 8 August 2003, the
         Sea Fisheries Directorate of that Ministry replied that the application could not be granted because of the prohibition at
         issue in the main proceedings, which constituted a supplementary fishery measure within the meaning of Regulation No 1626/94.
      
      24      That document was sent to the applicants in the main proceedings by document No 19/760 of 29 August 2003 of those prefectorial
         authorities.
      
      25      The applicants in the main proceedings sought the annulment of documents Nos 172 603 and 19/760 before the Simvoulio tis Epikratias.
      
      26      The Alieftikos Agrotikos Sinetairismos gri-gri nomou Kavalas (Makedonia) (‘AASK’) (Rural Fisheries Cooperative of owners of
         ‘gri-gri’ vessels in the Kavala Prefecture) and the Panellinia Enosi Ploioktiton Mesis Alieias (‘PEPMA’) (Panhellenic Union
         of Owners of Coastal Fishing Vessels) intervened in the action.
      
      27      The Simvoulio tis Epikratias takes the view that the Member States may adopt supplementary measures which are stricter than
         those provided for under Regulation No 1626/94 in the marine areas subject to their sovereignty, in order to protect fragile
         or endangered species of marine fauna. Those measures are not restricted to the fixing of more stringent technical specifications
         for fishing gear or fishing seasons: they can also take the form of total bans on the use of certain types of fishing gear.
         The Simvoulio tis Epikratias is also of the opinion that the prohibitions on the use of certain fishing gear which were imposed
         by provisions of national law adopted before Regulation No 1626/94 entered into force are not affected by the provisions of
         that regulation, which post-date them, and that those prohibitions remain valid even if the use of that gear is not prohibited
         under Regulation No 1626/94.
      
      28      Being none the less uncertain as to the interpretation to be given to Regulation No 1626/94, the Simvoulio tis Epikratias
         decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
      
      ‘1.      Is it permitted, for the purposes of Article 1(2) of … 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?
      
      2.      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?’
      
       The questions referred
      29      By its questions, which should be dealt with together, the national court essentially asks whether Article 1(2) and Article
         1(3) of Regulation No 1626/94 are to be interpreted as precluding a national measure, such as that at issue in the proceedings
         before it, which prohibits the use of small encircling nets, when that measure was adopted before the regulation entered into
         force and the regulation does not prohibit the use of that type of net.
      
      30      In order to answer those questions, it must first be determined whether the provisions of Regulation No 1626/94 permit the
         maintenance of ‘measures supplementary to, or going beyond the minimum requirements of, the system’ established by that regulation,
         within the meaning of Article 1(2) thereof. If it is found that they do, it will then be necessary to determine whether the
         national measure at issue in the main proceedings meets the conditions laid down in Article 1(2) of that regulation.
      
      31      With regard, first, to the possibility of maintaining supplementary measures after the entry into force of Regulation No 1626/94,
         Article 1(3) of that regulation provides that the Commission is to be informed of any plans to introduce or amend national
         conservation and resource management measures. It follows from a literal interpretation of that provision that the obligation
         to inform the Commission concerns only national measures which have been adopted or amended after the date of entry into force
         of the regulation and not those already in existence at that date.
      
      32      That interpretation is supported, as the Advocate General observed in point 31 of his Opinion, by the fact that the second
         recital in the preamble to Regulation No 1626/94 states that it is appropriate to introduce ‘a harmonised management system
         suited to the circumstances [in the Mediterranean], while taking into account existing national regulations’.
      
      33      Admittedly, it follows from the eighth recital in the preamble to that regulation that national measures supplementary to,
         or going beyond the minimum requirements of, the system established may be maintained, subject to review by the Commission
         as regards their compatibility with EU law and their conformity with the common fisheries policy.
      
      34      It is clear from the Commission’s observations, however, that the Commission took into account the existing national measures
         when it was preparing Regulation No 1626/94 and that the entry into force of that regulation did not affect the application
         of the prohibition at issue in the main proceedings. As the Advocate General observed in point 32 of his Opinion, it is clear
         from the explanatory memorandum accompanying the proposal for a Council Regulation (EEC) of 11 December 1992 harmonising various
         technical measures in Mediterranean fisheries (COM(92) 533 final; OJ 1993 C 5, p. 6), which led to the adoption of Regulation
         No 1626/94, that ‘on the basis of some 400 legal texts communicated by the four Mediterranean Member States, [the Commission]
         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’.
      
      35      Paragraphs 2 and 3 of Article 1 of Regulation No 1626/94 must, accordingly, be interpreted as meaning that the entry into
         force of that regulation does not affect the validity of a supplementary national measure which had been adopted before that
         entry into force. Nevertheless, such measures must comply with the requirements set out in Article 1(2) of that regulation.
      
      36      Secondly, with regard to the categorisation of a national measure as a ‘supplementary measure’ for the purposes of Article
         1(2) of Regulation No 1626/94, it is apparent from the wording of that provision that Member States with a Mediterranean coastline
         may adopt measures supplementary to, or going beyond the minimum requirements of, the system established by that regulation,
         provided that those measures are compatible with EU law and in conformity with the common fisheries policy. In adopting such
         measures, those Member States are to ensure that fragile and endangered species and environments are conserved.
      
      37      In order to determine whether the prohibition on using small encircling nets, at issue in the main proceedings, complies with
         the requirements laid down in Article 1(2) of Regulation No 1626/94, it is necessary first to ascertain whether or not that
         type of net is among those the use of which is prohibited under the regulation. If it is not, it must then be ascertained
         whether that prohibition constitutes a measure going beyond the requirements established by that regulation. If it does, it
         will be necessary, in accordance with Article 1(2) of Regulation No 1626/94, to ascertain whether that measure is compatible
         with EU law; whether it is in conformity with the common fisheries policy; and whether, in adopting it, the Hellenic Republic
         ensured that fragile and endangered species and environments were conserved.
      
      38      With regard to the question whether or not small encircling nets are included in the fishing gear the use of which is prohibited
         under Regulation No 1626/94, it is clear from the wording of Articles 3, 5 and 6 of that regulation – Articles 5 and 6 being
         read in conjunction with Annexes II and III to that regulation – that encircling nets are not subject to an unconditional
         prohibition, but merely to restrictions on their use. It follows that small encircling nets are not among the types of fishing
         gear the use of which is prohibited under Regulation No 1626/94.
      
      39      As regards the question whether the prohibition on the use of small encircling nets constitutes a measure going beyond the
         minimum requirements of the system established by Regulation No 1626/94, it is apparent from Article 3(4) of that regulation
         that the use of encircling nets is prohibited within 300 m of the coast, or within the 30 m isobath where that depth is reached
         at a shorter distance. Furthermore, Article 5(1) of that regulation, read in conjunction with Annex II thereto, provides that,
         with regard to encircling nets, the length of the netting is restricted to 800 m and the drop to 120 m. Lastly, Article 6(1)
         of Regulation No 1626/94, read in conjunction with Annex III to that regulation, prohibits the use and the keeping on board
         of encircling nets whose mesh is smaller than 14 mm.
      
      40      It follows from all those considerations that, pursuant to Regulation No 1626/94, the use of encircling nets is permitted,
         provided that that gear is used beyond 300 m from the coast, or beyond the 30 m isobath where that depth is reached at a shorter
         distance, that the maximum length of the netting is 800 m and that of the drop is 120 m and that the mesh is larger than 14 mm.
         Accordingly, the prohibition on granting permits for the use of small encircling nets, whatever their place of use, the length
         of their netting, their drop or the size of their mesh, constitutes a measure going beyond the requirements established by
         Regulation No 1626/94, for the purposes of Article 1(2) of that regulation.
      
      41      With regard to the compatibility of the prohibition at issue in the main proceedings with EU law and, in particular, its conformity
         with the common fisheries policy, the applicants in the main proceedings advance a number of arguments. First, they submit
         that the sardine caught using small encircling nets represent only 6% to 9% of the quantity of sardine fished in the Kavala
         region and that only 30 vessels use such nets in that region. Next, they submit that the prohibition on the use of small encircling
         nets applies only to small vessels and not to large vessels, that is to say, not to those of more than 14 m in length. Since
         small vessels can use only small encircling nets, the prohibition deprives them of all fishing opportunities. The fourth recital
         in the preamble to Regulation No 1626/94 states that part of the coastal zone should be reserved for the most selective gear
         used by small-scale fishermen, which would include small encircling nets. Simple restrictions on use would have been preferable.
         Lastly, the applicants claim that that measure is not limited in time; that it discriminates against fishermen using small
         encircling nets; and that it adversely affects their activity.
      
      42      The Greek Government states that small encircling nets are used in a coastal area where certain aquatic organisms reproduce
         and develop, and where certain fish, such as sardine, hibernate. The effect of the small encircling nets is to destroy that
         marine area and the spawning grounds, which affects fishery resources. Certain species living in those areas are in danger
         of extinction, even if sardine are not. The Greek Government states that the prohibition on fishing with small encircling
         nets does not prevent the development of fishing activities, because such activities are still possible with other types of
         fishing gear for which permits are issued. According to the Greek Government, the prohibition at issue in the main proceedings
         is therefore justified, appropriate and proportionate.
      
      43      The Commission argues that, in order to be sure that the prohibition at issue in the main proceedings is compatible with the
         common fisheries policy in the Mediterranean, it is necessary to determine whether, given its unconditional nature, that measure
         is proportionate and effective in relation to the objective of conserving and managing living aquatic resources. To that end,
         account should be taken, in a balanced manner, of the economic, social and environmental aspects. It is necessary to ascertain
         whether there was a severe shortage of coastal fish at the time when the prohibition at issue in the main proceedings was
         adopted, whether the unconditional prohibition was the only option or whether other measures, such as the prevention of illegal
         fishing or the limiting of catches, would have been equally effective. Lastly, it is necessary to ascertain whether the economic
         operators – that is to say, the small coastal fishermen and the users of ‘gri-gri’ – were treated equally. It is for the national
         court to determine these matters in the light of the information before it.
      
      44      At the hearing, the Commission stated that, in its opinion, the unconditional prohibition was disproportionate in the light
         of the small number of vessels which use small encircling nets and given the modest percentage of catches made with those
         nets. The Commission maintains that it would be sufficient to limit the use of that type of net to a small number of vessels
         and to a certain time of year. It seems to have been established that the sardine stocks are not in danger, but the Commission
         does not know whether other species of fish are endangered because of fishing with small encircling nets. Lastly, the Commission
         notes that the prohibition at issue in the main proceedings dates from 1985 and that the situation should be examined afresh
         in the light of scientific opinion.
      
      45      It should be borne in mind that, under Article 2(1) of Regulation No 2371/2002, 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 ecosystems’.
      
      46      According to the national court, Presidential Decree 542/1985 was adopted on the basis of Opinion No 75 of the Fisheries Council
         of 12 April 1984. It is apparent from that opinion that the prohibition of small encircling nets was considered necessary
         because that fishing gear was being used in an area which was one or two miles from the coast, where aquatic organisms developed
         and reproduced and in which other fishing gear was used, all of which had brought about a reduction in stocks. Similarly,
         according to the observations submitted by the Greek Government at the hearing, it is in that area that certain aquatic organisms
         reproduce and develop and that certain fish, such as sardine, hibernate. Small encircling nets were used to fish for that
         species of fish in that area and this had had the effect of destroying the marine area in question. The prohibition of that
         fishing gear was therefore intended to prevent the destruction, perhaps even the extinction, of the resources of that coastal
         area.
      
      47      It is apparent from those explanations that the prohibition at issue in the main proceedings was adopted not with a view to
         protecting sardine stocks but with the aim of preserving a fragile environment and a marine ecosystem. The fact that only
         a small percentage of the total sardine catch in the Kavala region was caught using small encircling nets is of no significance,
         therefore, for the purposes of assessing the lawfulness of that prohibition.
      
      48      In consequence, it appears that the prohibition at issue in the main proceedings is consistent with the precautionary approach
         which the European Union and the Member States are to apply 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 ecosystems.
      
      49      However, in order for that prohibition to be compatible with EU law and in conformity with the common fisheries policy, it
         had to comply with the principles of proportionality and non-discrimination, which are general principles of EU law and which,
         in the field of agriculture – such as fisheries – are embodied in the second subparagraph of Article 34(2) EC (see Case C‑535/03
         Unitymark and North Sea Fishermen’s Organisation [2006] ECR I‑2689, paragraph 53).
      
      50      In order to be consistent with the principle of proportionality, the prohibition must be appropriate for attaining the objective
         pursued and must not go beyond what is necessary to achieve it (see Unitymark and North Sea Fishermen’s Organisation, paragraph 56).
      
      51      It is for the national court to check that the prohibition at issue in the main proceedings does not go beyond what is necessary
         to achieve the objective pursued. Since that measure introduces an unconditional prohibition, it is necessary to determine
         whether other measures – such as restrictions on the use of small encircling nets during certain seasons or at certain times
         of day, and limits on the number of permits issued – would not have been sufficient to ensure conservation of the ecosystem
         of the coastal area.
      
      52      As regards the principle of non-discrimination, it should be borne in mind that that principle requires that comparable situations
         not be treated differently and that different situations not be treated alike unless such treatment is objectively justified
         (see Case C‑44/94 Fishermen’s Organisations and Others [1995] ECR I‑3115, paragraph 46).
      
      53      It should be noted that the prohibition at issue in the main proceedings relates to permits for fishing with a certain type
         of net and does not distinguish between the various user categories in connection with that type of fishing gear. Accordingly,
         that measure does not appear to contain any provision which is directly discriminatory.
      
      54      At the hearing, it was argued that the small coastal fishing vessels use only small encircling nets and no other fishing gear
         and that the prohibition deprives them de facto of all fishing possibilities.
      
      55      However, the fact that one particular group is affected to a greater extent than another by a legislative measure does not
         necessarily mean that the measure is disproportionate or discriminatory inasmuch as it seeks a comprehensive solution to a
         problem of general public importance (see Unitymark and North Sea Fishermen’s Organisation, paragraph 63).
      
      56      In that regard, as the Advocate General pointed out in point 47 of his Opinion, the fact that the fourth recital in the preamble
         to Regulation No 1626/94 states that part of the coastal zone should be reserved for the most selective gear used by small-scale
         fishermen does not preclude the prohibition, in accordance with that recital, of fishing gear the use of which contributes
         excessively to the degradation of the marine environment.
      
      57      Since the prohibition at issue in the main proceedings is such as to deprive a category of fishermen of their fishing activities,
         it is for the national court to determine whether there are objective differences between the ‘gri-gri’ and the small encircling
         nets as regards their technical characteristics and their use and, if so, whether those differences justified the prohibition
         of the latter but not of the former.
      
      58      It follows from all those considerations that the answer to the questions referred is that Article 1(2) and Article 1(3) of
         Regulation No 1626/94 must be interpreted as meaning, first, that the entry into force of that regulation does not affect
         the validity of a supplementary national measure, a prohibition, which was adopted before that entry into force and, secondly,
         that those provisions do not preclude such a measure, provided that that prohibition is in conformity with the common fisheries
         policy, that it does not go beyond what is necessary to achieve the objective pursued and that it is not contrary to the principle
         of equal treatment, those being matters which it is for the national court to determine.
      
       Costs
      59      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Second Chamber) hereby rules:
      Article 1(2) and Article 1(3) 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, as amended by Council Regulation (EC) No 2550/2000 of 17 November
            2000, must be interpreted as meaning, first, that the entry into force of that regulation does not affect the validity of
            a supplementary national measure, a prohibition, which was adopted before that entry into force and, secondly, that those
            provisions do not preclude such a measure, provided that that prohibition is in conformity with the common fisheries policy,
            that it does not go beyond what is necessary to achieve the objective pursued and that it is not contrary to the principle
            of equal treatment, those being matters which it is for the national court to determine.
      [Signatures]
      * Language of the case: Greek.