The Queen, on the application of Unitymark Ltd and North Sea Fishermen's Organisation v Department for Environment, Food and Rural Affairs.
Date: 2006-03-23
50. As regards the free movement of goods, the parties do not dispute the need for legislation temporarily limiting catches of cod, by various categories of fishermen, in order to prevent cod stocks from being exhausted in the long term. The Court has already held with regard to measures reducing in the short term the quantities of fish that can be traded between the Member States, but designed in the long term to ensure an optimum yield from fishing and therefore to increase such trade, that measures of that kind do not fall within the scope of Article 29 EC relating to the free movement of goods (see Case 46/86 Romkes  [1987] ECR 2671, paragraph 24).
52. The freedom to pursue a trade or business has been recognised by the Court (see, in particular, Case C-44/94 Fishermen’s Organisations and Others  [1995] ECR I‑3115, paragraph 55) but, as pointed out by the Commission in its written observations, the national court has not stated that this freedom would be infringed separately from any infringement of the principles of proportionality and non-discrimination, which is examined below. It must therefore be held that this aspect of the question likewise does not require separate examination.
Infringement of the principles of non‑discrimination and proportionality
53. The principle of non-discrimination and the principle of proportionality which, in this instance, is closely linked to it are general principles of Community law and, in the field of agriculture, including fisheries, are embodied in the second subparagraph of Article 34(2) EC.
55. In accordance with settled case-law, the Community legislature has a wide discretion in this field, corresponding to the political responsibilities given to it by Articles 34 EC to 37 EC. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion (Case C-189/01 Jippes and Others  [2001] ECR I‑5689, paragraph 80, and Case C-304/01 Spain  v Commission  [2004] ECR I‑7655, paragraph 23).
56. With regard to this discretion, the Court has held that the principle of proportionality requires that measures implemented through Community provisions should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, inter alia, Case C-210/00 Käserei Champignon Hofmeister  [2002] ECR I-6453, paragraph 59; Case C-210/03 Swedish Match  [2004] ECR I-11893, paragraph 47; Joined Cases C-453/03, C‑11/04, C-12/04 and C-194/04 ABNA and Others  [2005] ECR I-0000, paragraph 68; and Case C-344/04 IATA and ELFAA  [2006] ECR I-0000, paragraph 79).
57. So far as concerns judicial review of compliance with this principle, bearing in mind the wide discretion enjoyed by the Community legislature in matters concerning the common agricultural policy, the legality of a measure adopted in that field can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see Case C-331/88 Fedesa and Others  [1990] ECR I-4023, paragraph 14; Joined Cases C-133/93, C‑300/93 and C-362/93 Crispoltoni and Others  [1994] ECR I‑4863, paragraph 42; Jippes , paragraph 82; and IATA and ELFAA , paragraph 80).