The EU Court of Justice recently confirmed that Germany cannot prohibit commercial fishing in a Natura 2000 area despite a claim made by an environmental organization to that effect, as the prohibition could affect fishing vessels from other EU member states.
Read lawyer Hans Sønderby Christensen’s article published on Friday, July 6, 2018, on Jyllands-Posten’s website here or download it as a PDF here.
In a new landmark ruling of June 13, the EU Court of Justice establishes that national authorities do not have the competence to adopt measures for fishing within Natura 2000 areas when the measure not only affects the member states’ own fishing vessels but also fishing vessels of other EU member states flying their own flag.
In EU law, nature protection plays an increasingly important role. EU law’s rules on nature protection include Natura 2000, which is a designation for natural areas that are specially protected. The purpose of the nature protection rules is to preserve and protect habitat types and wild animal and plant species that are rare, threatened, or characteristic of the EU countries.
The member states are obliged to make the necessary efforts to secure or restore these natural areas. However, even if a natural area is covered by Natura 2000, this does not mean that nature invariably takes precedence over human activities. There are limits to member states’ lawful interventions.
The EU member states and the EU Commission jointly determine the areas that will be part of Natura 2000 and thus obtain special protection and preservation. Based on the member states’ and the Commission’s proposals for sites of Community importance to be covered by Natura 2000, a list of the areas in question is updated.
The recently delivered judgment concerns the Natura 2000 areas “Sylter Außenriff” in the North Sea, “Pommersche Bucht mit Oderbank” and “Pommersche Bucht” in the Baltic Sea. The three areas are located in waters where sea fishing is practiced by fishermen from various EU countries. Fishing in the areas is carried out using bottom-contact methods and the use of bottom-set nets. According to Deutscher Naturschutzring (environmental protection organization in Germany), these fishing methods are not compatible with EU law, which is why the organization requested the Bundesamt für Naturschutz (Federal Agency for Nature Conservation) to prohibit fishing with bottom-contact methods and the use of bottom-set nets in the areas in question. Deutscher Naturschutzring was of the opinion that the prohibition was a necessary, preventive, and remedial measure pursuant to the Natura 2000 rules, according to which the authorities are obliged to take the necessary measures to preserve and protect the Natura 2000 areas. The Federal Agency for Nature Conservation did not uphold Deutscher Naturschutzring’s request, nor did it uphold the organization’s subsequent complaint. Deutscher Naturschutzring then brought an action before the Verwaltungsgericht Köln (Administrative Court of Cologne). The Verwaltungsgericht Köln chose to postpone the case and submit preliminary questions to the EU Court of Justice. According to the Verwaltungsgericht Köln, the dispute in the case concerns whether it is Germany as a member state or the EU Commission that has the competence to adopt Deutscher Naturschutzring’s proposal for measures, including a ban on commercial fishing in the Natura 2000 areas. The Federal Agency for Nature Conservation was of the opinion that they did not have the necessary competence to take the environmental organization’s proposed measure on the grounds that when measures may affect other member states’ fishing vessels, it is exclusively the Commission that has the competence to take them. The EU Court of Justice then ruled on whether it is consistent with EU law for a member state to lay down measures in waters falling under the member state’s territorial sea when these measures have an impact on fishing vessels from other EU member states.
It follows from EU law’s nature protection rules that member states have the competence to take conservation measures in Natura 2000 areas. However, it is required that the conservation measures must first concern that state’s territory. Secondly, the measures must be compatible with the objective of maintaining and restoring a favorable conservation status for certain habitat types and habitats of certain species, and thirdly, the conservation measure must not affect other member states’ fishing vessels. The EU Court of Justice initially states that the provisions mentioned and the concepts therein must not only be interpreted in relation to the wording. The context in which the provision is applied and the purpose it follows are important factors to bear in mind in relation to the interpretation.
As far as the first concept “conservation measures” is concerned, the judgment in question concerns a measure that prohibits fishing with bottom-contact fishing gear and bottom-set nets. The EU Court of Justice notes that, according to EU law’s nature protection rules, this measure constitutes a “conservation measure”. The EU Court of Justice then notes that conservation measures that in this way restrict fishing methods follow the purpose of promoting fishing with limited impact.
As far as the second concept “measures that meet the objectives of the relevant EU legislation” is concerned, the EU Court of Justice refers to the fact that the purpose of the Natura 2000 rules is to ensure the maintenance or restoration of the extensive natural areas, so that habitat types and species can be preserved in their natural range. According to the EU legal principle of proportionality, the member state must ensure that the least intrusive rule is applied in relation to the achievement of the purpose. In relation to the proposal for a ban, the purpose of which is to promote the maintenance or restoration of the natural areas, the EU Court of Justice notes that the measure is consistent with the principle of proportionality. The proposal is thus covered by the EU legal rules on nature protection in question.
As far as the third concept “fishing vessels from other member states” is concerned, the concept must be understood as referring to the ships that fly the flag of a member state other than the flag belonging to the area in question. In such situations, the ship is subject to the jurisdiction and efficiency control of the member state whose flag it flies. The measure in question on the prohibition of bottom-contact fishing gear and bottom-set nets has an impact on such ships flying the flags of other member states.
The EU Court of Justice then concluded that a member state cannot unilaterally adopt measures such as the one in question, where the measure has an impact on fishing vessels flying the flags of other member states. It has thus been established with the judgment that the member states do not have the competence to adopt measures that affect the Natura 2000 areas when the measures affect other EU member states. The competence, on the other hand, has been conferred on the EU Commission.