Even if Article 3(1)(d) TFEU gives the EU an exclusive competence over the common fisheries policy, then can a Member State still enact laws to stop boats from bottom-trawling by virtue of EU environmental law?
Some areas of the EU’s seas are ‘Natura 2000’ sites. These provide a home to Europe’s most valuable and threatened species. However, commercial exploitation is still permitted.
This case concerns Natura 2000 sites in German areas of The North Sea and The Baltic. A German environmental group has asked the German State for German laws to stop boats from bottom-trawling and from using anchored gill and entangling nets.
The German State has refused the environmentalists’ requests. There were two justifications for this. First, the State had no competence to act. Such matters fell within the exclusive competence of the EU by dint of Article 3(1)(d) of the TFEU. Further support for that position could be found in German legal commentary written by the environmental specialist Lütkes, and also in a policy document written by the EU Commission. Even if the German State was wrong on that first point, then it still thought it had no competence to introduce the requested measures. This was because it was foreseeable that those measures would affect fishing boats from other Member States so once again only the EU institutions could act.
The environmentalists duly challenged the legality of the German State’s decision, and appealed the matter into the second chamber of Cologne’s administrative law court. The environmentalists reminded the court that the German State was responsible for both the enforcement of the habitats Directive 92/43, and achieving the environmental goals in the common fisheries policy (Regulation 1380/2013 (OJ  L354/22). In that context, no one was contesting that the specific fishing methods which would be caught by the requested bans, were destroying the sandbanks in The North Sea and in The Baltic.
On hearing the parties’ arguments, the German judges decided to ask three questions of the CJEU.
The first question arose from the fact that Germany not only had to enforce the habitats directive but the goals of that Directive also had to be respected by the common fisheries policy regulation – so was the German State still prevented from acting?
The key here was Article 11(1) of the common fisheries regulation, which provides:
Member States are empowered to adopt conservation measures not affecting fishing vessels of other Member States that are applicable to waters under their sovereignty or jurisdiction and that are necessary for the purpose of complying with their obligations under Article 13(4) of Directive 2008/56/EC, Article 4 of Directive 2009/147/EC or Article 6 of Directive 92/43/EEC, provided that those measures are compatible with the objectives set out in Article 2 of this Regulation, meet the objectives of the relevant Union legislation that they intend to implement, and are at least as stringent as measures under Union law.
In light of that rule, the German judges wanted to know what was meant by ‘conservation measures’, because there were hints in Article 7 of the Regulation which suggested that ‘conservation measures’ might cover what the environmentalists were asking for.
The next element of the rule in Article 11 which needed clarification was the phrase ‘fishing vessels of other Member States’. In this case, although there were boats flying the German flag in the waters that would be affected by the measures, those German-flagged fishing vessels were actually from other Member States. What should be done?
The second question of the German judges looked at interpreting the Article 11 rule in light of a completely different plank of environmental legislation. That is to say, did Article 11 preclude national measures that would be applicable to waters under the Member State’s sovereignty or jurisdiction but where those measures would also be necessary for the State to discharge its obligations under Directive 2004/35 to prevent and repair environmental harm?
And the gist of the judges’ third question was whether Article 3(1)(d) TFEU, which gave the EU exclusive competence in fisheries, precluded the Member State from taking the measures requested by the environmentalists.
Last week, the CJEU heard a case involving the precautionary principle; see further, Case C-107/16, Fidenato – growing genetically modified maize.
There is also one further preliminary reference concerning the precautionary principle which slightly predates this German one; see further, Case C-528/16, Confédération paysanne – against new herbicide-resistant plants.