Case C-535/03

The Queen on the application of:

Unitymark Ltd and North Sea Fishermen’s Organisation

v

Department for Environment, Food and Rural Affairs

(Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court))

(Fisheries – Cod – Limitation of fishing effort – Open gear beam trawls – Principles of proportionality and non‑discrimination)

Summary of the Judgment

1.        Free movement of goods – Quantitative restrictions

(Art. 29 EC)

2.        Community law – Principles – Proportionality – Equal treatment – Common agricultural policy

(Art. 34(2) EC)

3.        Fisheries – Conservation of marine resources – Limitation of fishing effort

(Council Regulation No 2341/2002, Annex XVII, paras 4(b), and 6(a); Commission Decision 2003/185, Art. 1)

1.        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, do not fall within the scope of Article 29 EC relating to the free movement of goods.

(see para. 50)

2.        The principle of non-discrimination and the principle of proportionality 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. That provision entrusts the Community legislature with the task of implementing the common agricultural policy formulated in Article 33 EC, in order to ensure, in particular, a fair standard of living for the agricultural community and the availability of supplies, while excluding any discrimination between producers within the Community.

So far as concerns judicial review of compliance with the principle of proportionality, and 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 paras 53-54, 57)

3.        The validity of paragraphs 4(b) and 6(a) of Annex XVII to Regulation No 2341/2002 fixing for 2003 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required, of paragraphs 4(b) and 6(a) of that annex as amended by Regulation No 671/2003, and of Article 1 of Decision 2003/185 on the allocation of additional days absent from port to Member States in accordance with Annex XVII to Regulation No 2341/2002 is not affected by the fact that vessels equipped with open gear beam trawls bore a markedly greater part of the burden of the measures limiting fishing effort than vessels equipped with other gears, proportionally to the quantity of cod which they caught.

Those measures are not manifestly inappropriate. By the measures in question, the Council preferred to divide the reduction in fishing effort among all the operators concerned rather than impose a moratorium on the activity of fishermen catching principally cod. In so doing, it strove to meet one of the objectives of the common agricultural policy, namely maintenance of a fair standard of living for the fishermen concerned as a whole. This choice made by the legislature is not in itself open to criticism, provided it does not have the effect that, by adoption of the contested measures, another group of fishermen is penalised disproportionately and without objective justification. 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 paras 59-60, 63, 76-77, operative part)