Contents
Judgment of the Court (Second Chamber)2 September 2010noteIn 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 proceedingsPanagiotis I. Karanikolas and OthersvIpourgos Agrotikis Anaptixis kai Trofimon,Nomarkhiaki Aftodioikisi Dramas, Kavalas, Xanthis,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
1This 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’).
2The 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
3In 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.’
4Article 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.’
5Article 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
6The 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’.
7Article 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.’
8Article 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.’
9Paragraphs 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.’
10Article 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.’
11Under Annex II to that regulation, the length of the netting of encircling nets is restricted to 800 m and the drop to 120 m.
12Article 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.…’
13Annex III to that regulation sets the minimum mesh size for encircling nets at 14 mm.
14Regulation No 1626/94 was repealed by Council Regulation (EC) No 1967/2006 of 21 December 2006 (OJ 2006 L 409, p. 9).
National legislation
15According to the Simvoulio tis Epikratias, the national legislation at issue in the case before it has gone through a number of successive stages.
16The 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.
17Presidential 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.
18Presidential 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.
19That 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.
20According 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
21The 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.
22On 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.
23The 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.
24That document was sent to the applicants in the main proceedings by document No 19/760 of 29 August 2003 of those prefectorial authorities.
25The applicants in the main proceedings sought the annulment of documents Nos 172 603 and 19/760 before the Simvoulio tis Epikratias.
26The 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.
27The 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.
28Being 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
29By 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.
30In 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.
31With 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.
32That 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’.
33Admittedly, 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.
34It 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’.
35Paragraphs 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.
36Secondly, 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.
37In 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.
38With 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.
39As 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.
40It 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.
41With 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.
42The 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.
43The 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.
44At 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.
45It 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’.
46According 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.
47It 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.
48In 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.
49However, 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).
50In 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).
51It 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.
52As 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).
53It 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.
54At 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.
55However, 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).
56In 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.
57Since 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.
58It 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
59Since 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.
Operative part
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.
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