Provisional text

11 June 2025 (*)

( Common Fisheries Policy – Article 9 of Regulation (EU) 2016/2336 – Implementing Regulation (EU) 2022/1614 – Methods and criteria for determining areas where vulnerable marine ecosystems are known to occur or are likely to occur – Establishment of a list of areas where the presence of vulnerable marine ecosystems is proven or probable – Establishment of buffer zones – Plea of illegality – Proportionality )

In Case T‑781/22,

Madre Querida, SL,

established in Burela (Spain), and the other applicants whose names are listed in the annex, (1) represented by Á. Givaja Sanz, A. Lamadrid de Pablo and V. Romero Algarra, lawyers,

applicants,

supported by

Kingdom of Spain,

represented by A. Gavela Llopis and J. Ruiz Sánchez, acting as Agents,

and by

Comunidad Autónoma de Galicia, represented by Á. Givaja Sanz, A. Lamadrid de Pablo and V. Romero Algarra, lawyers

interveners,

European Commission,

represented by A. Dawes and I. Galindo Martín, acting as Agents,

defendant,

supported by

European Parliament,

represented by I. Terwinghe, C. Ionescu Dima and C. Burgos, acting as Agents,

and by

Council of the European Union,

represented by L. Hamtcheva, F. Naert and G. Rugge, acting as Agents,

interveners,

THE GENERAL COURT (Seventh Chamber, Extended Composition),

composed of S. Papasavvas, President, K. Kowalik-Bańczyk, E. Buttigieg, I. Dimitrakopoulos (Rapporteur) and B. Ricziová, Judges,

Registrar: P. Nuñez Ruiz, Administrator,

having regard to the written part of the procedure,

further to the hearing on 4 July 2024,

gives the following

1By their action under Article 263 TFEU, the applicants, Madre Querida, SL and the other legal persons whose names appear in the annex, seek, in essence, the annulment of Article 2 of and Annex II to Commission Implementing Regulation (EU) 2022/1614 of 15 September 2022 determining the existing deep-sea fishing areas and establishing a list of areas where vulnerable marine ecosystems are known to occur or are likely to occur (OJ 2022 L 242, p. 1; ‘the contested regulation’).

2Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ 2013 L 354, p. 22), determines, in particular, the objectives and principles of the Common Fisheries Policy (CFP). It provides, inter alia, for the adoption of measures for the conservation and sustainable exploitation of marine biological resources.

3Regulation (EU) 2016/2336 of the European Parliament and of the Council of 14 December 2016 establishing specific conditions for fishing for deep-sea stocks in the north-east Atlantic and provisions for fishing in international waters of the north-east Atlantic and repealing Council Regulation (EC) No 2347/2002 (OJ 2016 L 354, p. 1; ‘the basic regulation’) is intended to contribute to the achievement of the objectives of Regulation No 1380/2013, so far as concerns deep-sea species and habitats, namely to ensure that fishing activities are environmentally sustainable in the long term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies.

4Article 7(1) of the basic regulation provides that, by 13 July 2017, Member States whose vessels have been granted a deep-sea fishing permit in accordance with Article 3(1) of Council Regulation (EC) No 2347/2002 of 16 December 2002 establishing specific access requirements and associated conditions applicable to fishing for deep-sea stocks (OJ 2002 L 351, p. 6), and as far as it relates to fishing activities by vessels catching more than 10 tonnes of deep-sea species each calendar year, are to inform the European Commission, by means of VMS (Vessels Monitoring Systems) records or, if VMS records are not available, by means of other relevant and verifiable information, of the locations of fishing activities for deep-sea species carried out by such vessels during the calendar years 2009 to 2011.

5Article 9(6) of the basic regulation provides for the adoption by the Commission of implementing acts for the purpose of establishing a list of areas where vulnerable marine ecosystems (‘VMEs’) are known to occur or are likely to occur. According to Article 9(9) of that regulation, fishing with bottom gears is to be prohibited in all areas listed in accordance with paragraph 6.

6In April 2017, the Commission launched a call for data pursuant to Article 7(1) of the basic regulation. In response to that call, Member States submitted VMS records and other relevant and verifiable data on the location of fishing activities for deep-sea species carried out by such vessels during the calendar years 2009 to 2011.

7In July 2017, and based on the data submitted by the Member States, the Commission requested the International Council for the Exploration of the Sea (ICES) to issue an advice to determine the existing deep-sea fishing areas and establish a list of areas where VMEs are known to occur or are likely to occur.

8On 5 January 2021, after obtaining additional VMEs and VMS data from the Member States, covering a period up to 2018, or even, for some data, up to 2020, ICES issued advice in which it both determined the existing deep-sea fishing areas for bottom-contacting gears operating at a depth range between 400 and 800 metres and established a list of areas where VMEs are known to occur or are likely to occur (‘the 2021 ICES advice’).

9On 17 November 2021, the Commission requested ICES to issue an additional advice containing the coordinates of the existing deep-sea fishing areas and the list of VME areas located in EU waters of the north-east Atlantic only. That advice was issued on 7 February 2022.

10On 15 September 2022, on the basis of that information, the Commission adopted the contested implementing regulation, based in particular on Article 9(6) of the basic regulation.

11Article 2 of the contested regulation provides:

‘1. The list of areas where VMEs are known to occur or are likely to occur [is] established in line with the coordinates set out in Annex II.

II. Forms of order sought

12The applicants claim, in essence, that the Court should:

–annul Article 2 of and Annex II to the contested regulation;

–order the Commission to pay the costs of the present proceedings and the Council of the European Union and the European Parliament to bear their own costs.

13The Commission contends that the Court should:

–dismiss the action as partially inadmissible and, in any event, as unfounded;

–order the applicants to pay the costs and the Comunidad Autónoma de Galicia (Autonomous Community of Galicia, Spain) to bear its own costs.

14The Council contends that the Court should:

–reject the second plea in law concerning the alleged illegality of Article 9(6) and (9) of the basic regulation;

–order the applicants to pay the costs.

15The Parliament contends that the Court should:

–grant the form of order sought by the Commission and, accordingly, reject the second plea in law, alleging that Article 9(6) and (9) of the basic regulation is unlawful, in so far as it is in part inadmissible and, in any event, unfounded;

–order the applicants to pay the costs.

16The Kingdom of Spain submits, in essence, that the Court should:

–uphold the action for annulment;

–order the Commission to pay the costs.

17The Autonomous Community of Galicia submits, in essence, that the Court should:

–annul Article 2 of and Annex II to the contested regulation;

–order the Commission to pay the costs of the present proceedings and the Parliament and the Council to bear their own costs.

III. Law

18As is clear from the applicants’ first head of claim, that head of claim seeks the annulment of Article 2 of the contested regulation in its entirety and of Annex II to that implementing regulation (see paragraph 12 above).

19In that regard, according to settled case-law, only measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in its legal position may be the subject of an action for annulment under Article 263 TFEU (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; order of 4 October 1991, Bosman v Commission, C‑117/91, EU:C:1991:382, paragraph 13; and judgment of 15 January 2003, Philip Morris International v Commission, T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraph 77).

20In order to ascertain whether a measure in respect of which annulment is sought is open to challenge, it is necessary to look to its substance, the form in which it is cast being, in principle, immaterial in that regard (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 28 November 1991, Luxembourg v Parliament, C‑213/88 and C‑39/89, EU:C:1991:449, paragraph 15; and of 24 March 1994, Air France v Commission, T‑3/93, EU:T:1994:36, paragraphs 43 and 57).

21It must be noted that, in the present case, Article 2(2) of the contested implementing regulation, the wording of which is recalled in paragraph 11 above, merely refers to the applicable rules of the basic regulation, without having any autonomous legislative scope and, in particular, without laying down any additional obligations with regard to the persons concerned, such as to bring about a distinct change in their legal position. The provision in question simply recalls the relevant legal framework provided for by the basic regulation, in particular Article 9(1) and (9) thereof. The action must therefore be regarded as inadmissible in so far as it seeks the annulment of Article 2(2) of the contested implementing regulation.

22The applicants put forward two pleas in law. The first plea alleges that the contested regulation infringes Article 9(6) of the basic regulation and general principles of EU law, more specifically the principles of non-discrimination and proportionality. By their second plea, the applicants raise an objection of illegality in respect of the basic regulation, alleging infringement of general principles of EU law by Article 9(6) and (9) of the basic regulation.

23According to the applicants, in essence, the contested provisions infringe Article 9(6) of the basic regulation and the principle of non-discrimination, in that, in the absence of scientific information, they treat fishing gears which are not comparable in the same way and apply the prohibition on fishing unequally in the north-east Atlantic. Those provisions also infringe the principle of proportionality, in that they exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives of the CFP, in so far as, according to the applicants, they prohibit fishing with passive gears without taking into account the impact of such gears on the seabed, without delimiting VME protection polygons in a precise and appropriate manner for passive gears and without taking into account the socioeconomic impact of those restrictions on economic operators. Those infringements constitute, in their view, manifest errors of assessment by the Commission.

(a) Infringement of Article 9(6) of the basic regulation and of the principle of non-discrimination

(1) The first complaint, alleging infringement of Article 9(6) of the basic regulation and of the principle of non-discrimination on account of the identical treatment of passive and mobile fishing gears, without any objective reason, when determining the areas where VMEs are known to occur or are likely to occur

24The applicants, supported by the Kingdom of Spain and the Autonomous Community of Galicia, allege, in essence, that fishing gears are distinguished by their functionality, according to whether they are towed through the marine environment (including, in particular, trawls, ‘mobile gears’) or whether they are fixed at a specific point of the marine environment (including, in particular, longlines; ‘passive gears’). The applicants maintain that fishing gears are also distinguished by their mode of operation, by reference to the depth at which they are used and to their proximity to the seabed. In their view, passive gears have a minimal impact on the surface of the seabed, which, in any event, is not appreciable. Among these, demersal longlines (used by the applicants) have a negligible impact.

25The fact that bottom trawling gears have a significantly greater impact on marine ecosystems and on the seabed itself, since they have far more contact with that seabed, is also highlighted by the basic regulation, inter alia in recital 7 and Article 16(1) thereof. Aware of those differences, the Commission initiated the legislative procedure which led to the adoption of the basic regulation by proposing a prohibition on trawling and its transformation into a longline fleet, stating that longlines had a low impact on the seabed. The applicants also point to the European Union’s commitment to implementing Resolutions 61/105 and 64/72 adopted by the United Nations General Assembly, as well as the fact that the Food and Agriculture Organisation of the United Nations (FAO), in its International Guidelines for the Management of Deep-sea Fisheries in the High Seas of 29 August 2008 (‘the 2008 FAO Guidelines’), also drew a distinction between the various fishing gears when assessing deep-sea fishing activities. Notwithstanding those factors, according to the applicants, Article 9(9) of the basic regulation establishes, without justification, an indiscriminate prohibition on fishing which affects all bottom gears in the same way in areas where VMEs are known to occur or are likely to occur.

Next, the applicants point out that Article 9(6) of the basic regulation provided that the Commission was to draw up, by 13 January 2018, by means of implementing acts, a list of areas where VMEs are known to occur or are likely to occur. That list was to be established ‘on the basis of the best scientific and technical information available and of the assessments and identifications carried out by Member States and the scientific advisory body’. However, neither ICES, in its 2021 advice, nor the Commission had any technical or scientific evidence to suggest that passive fishing gears (and in particular demersal longlines) could have significant impacts on VMEs. The applicants thus allege infringement of Article 9(6) of the basic regulation, in that the Commission, in delimiting the areas where VMEs are known to occur, in Annex II to the contested implementing regulation, treated mobile and passive fishing gears in the same way, despite their differences in terms of impact on the seabed, without having taken account of the best scientific and technical information available. The Commission therefore infringed the principle of non-discrimination.

The Commission disputes the applicants’ claims.

In that regard, it should be recalled that the general principle of non-discrimination or the general principle of equal treatment requires that comparable situations must not be treated differently and different situations must not be treated alike, unless such treatment is objectively justified (judgments of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 129, and of 4 February 2021, Azienda Agricola Ambrosi Nicola Giuseppe and Others, C‑640/19, EU:C:2021:97, paragraph 70).

In the present case, it should be noted, first, that, in so far as the applicants’ claims relate to Article 2(2) of the contested implementing regulation, they are inadmissible (see paragraph 21 above). Secondly, as regards the claims alleging infringement of Article 9(9) of the basic regulation, they will be dealt with in the context of the second plea.

As regards the complaint alleging infringement of Article 9(6) of the basic regulation, it is necessary, in the light of the applicants’ claims (see paragraphs 24 to 26 above), to interpret that provision in order to define the criteria for determining the areas where VMEs are known to occur or are likely to occur which are the subject matter of Annex II to the contested regulation and, in particular, to determine whether they include an assessment of the adverse impacts of fishing with passive gears in the areas concerned.

In the first place, it should be noted that the interpretation of Article 9(6) of the basic regulation must be carried out in the light of certain definitions which flow directly from Article 4 of that regulation and that that article refers to the definitions set out in Article 4 of Regulation No 1380/2013 and Article 2 of Council Regulation (EC) No 734/2008 of 15 July 2008 on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears (OJ 2008 L 201, p. 8).

In that regard, on the one hand, Article 4(2)(j) of the basic regulation provides that ‘VME indicators’ means the species included in Annex III to that regulation. Article 4(2)(h) of that regulation provides that ‘encounters’ means catches of such quantities of VME indicator species that are above the threshold levels set out in Annex IV to that regulation. In particular, Annex III first of all lists the VME habitat types, with the taxa most likely to be found in those habitats which are to be considered as VME indicators. Next, the abovementioned Annex IV, in points (a) and (b), defines an encounter with a possible VME either in relation to a trawl tow, and other fishing gear than longlines (indicating as relevant the presence of more than 30 kg of live coral or 400 kg of live sponge of VME indicators), or in relation to a longline set (indicating as relevant the presence of VME indicators on 10 hooks per 1 000 hook segment or per 1 200 m section of longline, whichever is the shorter). Therefore, in accordance with those provisions, the presence of VMEs is demonstrated or indicated by elements linked to the nature and quantity of species ‘encountered’ by both mobile and passive gears. Those elements are relevant and important not only for the application of Article 9(2) and (3) of the basic regulation, but also for the establishment of areas where VMEs are known to occur or are likely to occur, in accordance with Article 9(4) and (6) of that regulation, as will be analysed below (see paragraphs 44 to 51 below).

On the other hand, as regards the concepts of ‘bottom gears’ and ‘significant adverse impacts’, these form an integral part of the definition of VMEs, in accordance with Article 2 of Regulation No 734/2008, to which Article 4 of the basic regulation refers.

First, according to Article 2(d) of Regulation No 734/2008, bottom gears are ‘gears deployed in the normal course of fishing operations in contact with the seabed’, examples of which are provided in that article (‘including bottom trawls …, bottom-set longlines’). It clearly follows that ‘bottom gears’, within the meaning of the above definition, include passive bottom gears, including longlines.

Secondly, according to Article 2(b) of Regulation No 734/2008, the ‘significant adverse impacts’ which threaten the integrity of the ecosystem, as specified in Article 2(c) of that regulation, result from physical contact of the seabed with bottom gears in general, in the normal course of fishing operations. In that context, the expression ‘in the normal course of fishing operations’ is linked to that of ‘physical contact with bottom gears’, set out in Article 2(b) of that regulation, and does not imply an assessment of the fishing activities carried out in the maritime areas concerned. That interpretation is supported by Article 2(d) of the regulation at issue, according to which ‘bottom gears’ are ‘gears deployed in the normal course of fishing operations in contact with the seabed’.

Thirdly, the definition in Article 2(b) of Regulation No 734/2008 also includes a non-exhaustive list of VMEs, which include ‘reefs, seamounts, hydrothermal vents, cold water corals or cold water sponge beds’. In that regard, as the Commission maintains before the Court, without this being disputed, that list corresponds to the types of VME habitats referred to in Annex III to the basic regulation which, as stated above, are defined on the basis of representative taxa, irrespective of the type of fishing gear likely to affect them. Consequently, the characterisation of areas where VMEs are known to occur or are likely to occur results from the application of objective criteria linked to the proven or probable presence of the protected species as listed, their protection being ensured in relation to the hazards associated with the effects of fishing with ‘bottom gears’ in general. The type of bottom gears, whether mobile or passive, has no impact on the indicators for those areas or on the types of VME habitats identified by the legislature in Annex III to the basic regulation. It follows, as the Commission rightly argued at the hearing, that the Commission had no discretion as to whether or not the marine habitats expressly included in the list of the abovementioned definition (Article 2(b) of Regulation No 734/2008) and included in the list in Annex III to the basic regulation constituted VMEs, on the basis of data relating to the types of bottom gears used in the normal course of fishing operations in the areas concerned.

Fourthly, according to Article 2(c) of Regulation No 734/2008, the abovementioned ‘significant adverse impacts’ are evaluated individually, in combination or cumulatively. Therefore, it is not necessary to examine the adverse impacts of passive bottom gears separately, since significant adverse impacts on areas where VMEs are known to occur can already be observed or are predictable on the basis of mobile gears and are therefore, at most, merely accentuated if additional adverse impacts due to passive gears are observed. As stated in paragraph 36 above, the proven or probable presence of protected species leads to the classification of the relevant areas as areas where VMEs are known to occur or are likely to occur, so as to ensure their protection against ‘bottom gears’ in general.

It must be concluded that, contrary to the applicants’ claims (see paragraph 26 above), in accordance with Article 2 of Regulation No 734/2008, an area may be classified as an area where VMEs are known to occur or are likely to occur, on account of the significant adverse impacts resulting solely from the use of mobile bottom gears or the use of bottom gears in general, without it being possible to call that classification into question in relation to passive bottom gears, in the light of their (potentially lesser) adverse impacts on the ecosystem concerned. In such circumstances, the establishment of the list of those areas, which forms part of Annex II to the contested implementing regulation, cannot depend on a comparative analysis of mobile and passive gears, even if the latter may pose lower risks than mobile gears. In particular, the Commission could not, on the one hand, confine itself to assessing the harmful effects of passive gears alone, since such an approach would not be permissible in so far as it would exclude consideration of the risk associated with the use of mobile gears, though this has been demonstrated. On the other hand, in any event, it has not been demonstrated that also taking account of passive gears could have resulted in the exclusion of one or more of the areas currently included in Annex II to that implementing regulation, in the light of the proven or potential presence of VMEs. Consequently, the approach adopted by the Commission cannot be regarded as discriminatory with regard to fishing with passive gears, which, it should be emphasised, is also covered by the general prohibition on ‘bottom gears’ laid down in Article 9(9) of the basic regulation. As regards the applicants’ claim relating to the absence of any adverse impact of passive gears, this will be analysed in the context of the second plea.

In the second place, it should be noted that Article 9(4) of the basic regulation refers to the 2008 FAO Guidelines for the purposes of the annual assessment of areas where VMEs are known to occur or are likely to occur. The factors which should be used as criteria for identifying VMEs are set out in paragraphs 14, 15 and 42 of those guidelines.

Those factors, which are linked to the characteristics of the ecosystems themselves, in particular their biological and structural aspects, are as follows:

–uniqueness and rarity [i];

–functional significance of the habitat [ii];

–fragility [iii];

–life-history traits of the habitat’s component species that make recovery difficult [iv];

–structural complexity [v].

It follows that the classification of a marine ecosystem as vulnerable does not presuppose an examination of the adverse impacts of passive bottom gears. It is true that, in accordance with paragraph 15 of the 2008 FAO Guidelines, the vulnerability of an ecosystem is assessed in the light of anthropogenic activities, and may vary depending on the types of fishing gear used. However, this does not mean that the classification of an ecosystem as vulnerable presupposes an assessment of its fragility specifically in the light of each type of gear used or that it can be limited to certain types of gear to the exclusion of others, since that classification is based on the characteristics of the ecosystem itself, which are not likely to vary depending on the impact of each type of gear used.

Moreover, it is clear from paragraphs 17, 18 and 47 of the 2008 FAO Guidelines that the assessment of the adverse impacts of fishing carried out or planned in the areas concerned follows the identification of VMEs and forms part of a later stage of the procedure for their protection, which concerns the taking of appropriate management and conservation measures intended to prevent any significant adverse impact on VMEs.

Consequently, the 2008 FAO Guidelines do not provide any guidance on interpretation which could support the argument put forward by the applicants concerning the need to assess the possible impact of the type of fishing and the gears to be used.

In the third place, a teleological and systemic analysis of Article 9(6) of the basic regulation should be carried out.

First, it should be noted that the identification by Member States of areas where VMEs are known to occur or are likely to occur, provided for by Article 9(4) of the basic regulation and taken into consideration by the Commission for the purposes of drawing up the list of those areas, is based inter alia on biogeographical information and information on VME encounters, which depend on the quantity of certain species (see the provisions of Annexes III and IV to that regulation) caught during a fishing operation. That information is therefore concerned with the biological and structural characteristics of the habitats in question rather than with the characteristics or effects of the various types of bottom gears used.

Secondly, it must be found that, while Article 9(6) of the basic regulation, in so far as it concerns the establishing of a list of areas where VMEs are known to occur or are likely to occur, lays down a requirement to conserve VMEs, this is nevertheless an element distinct from that concerning the adoption of specific measures for the conservation and sustainable exploitation of marine biological resources.

In that regard, as is apparent in particular from Article 4(1)(20) and Article 7(1) and (2) of Regulation No 1380/2013, the type of fishing gears used or their characteristics, with respect to their use, may be the subject matter of ‘technical measures’ that regulate the impacts on components of the ecosystems resulting from fishing activities. One such measure, falling within the scope of the ‘management of fisheries’, is that provided for in Article 9(9) of the basic regulation, according to which ‘fishing with bottom gears shall be prohibited in all areas listed in accordance with paragraph 6’.

Similarly, the possibility, provided for by the second sentence of Article 9(6) of the basic regulation, of removing an area from the list of VMEs, on the basis of an impact assessment and following the adoption of appropriate conservation and management measures, intended to ensure that significant adverse impacts on VMEs in that area are prevented, necessarily presupposes that such measures have been adopted. Accordingly, it cannot be inferred from that provision that a management approach, which includes the requirement to assess the consequences of VME protection measures on fishing activities and on economic and social life (see paragraph 23 above), should be applied in relation to the establishment of the list of areas where VMEs are known to occur or are likely to occur.

Thirdly, such an approach, advocated in essence by the applicants, is incompatible with the concept of ‘implementing act’, since it would amend or supplement the basic regulation in its essential elements concerning the protection of VMEs (see, to that effect, judgment of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraphs 44 and 48 to 51) and would go far beyond the powers conferred on the Commission by the first sentence of Article 9(6) of the basic regulation.

That consideration cannot be called into question by Article 9(4) of the basic regulation, under which the assessment of areas where VMEs are known to occur or are likely to occur is carried out in accordance with the precautionary approach to fisheries management, referred to in Article 4(1)(8) of Regulation No 1380/2013, according to which ‘the absence of adequate scientific information should not justify postponing or failing to take management measures to conserve target species, associated or dependent species and non-target species and their environment’. The application of that approach to the establishment of the list of areas where VMEs are known to occur or are likely to occur is justified, on the one hand, by the fact that the identification of those areas is an integral part of their protection and, on the other hand, by the likelihood of a lack of sufficient (or sufficiently reliable and credible) scientific data on the characteristics of the ecosystems concerned, which must be taken into account in identifying VMEs. That approach implies that the absence of such data should not prevent the Commission, in exercising its discretion in that sphere (see, by analogy, judgment of 22 June 2023, Arysta LifeScience Great Britain v Commission, C‑259/22 P, not published, EU:C:2023:513, paragraph 45), from classifying the areas concerned as areas where VMEs are likely to occur, where appropriate by taking into account elements relating to the fishing activities carried out, in order to assess the likelihood of the continued presence of VMEs.

It follows from all those considerations, set out in paragraphs 31 to 50 above, that, contrary to what the applicants claim, Article 9(6) of the basic regulation requires neither an assessment of the significant adverse impacts of passive gears in each area where VMEs are known to occur or are likely to occur included in the list in question nor a management approach, or even a management approach which includes an assessment of the consequences of measures to protect VMEs on fishing activities and on economic and social life.

In particular, the applicants focus their arguments on the question whether the ‘negative impacts’ of passive gears, including demersal longlines, which should be taken into account when determining the list of areas where VMEs are known to occur or are likely to occur, were ‘significant’ and compromised the integrity of the ecosystem (see in particular paragraphs 23 and 24 above). In that regard, it has already been noted in paragraph 41 above that it was necessary to rely, when creating a list of VMEs, on the characteristics of the ecosystems themselves, including their fragility, taking into account the risk of damage linked to the significant adverse impacts resulting, in general, from the use of bottom gears. Accordingly, in so far as the specific type of fishing gears used, whether mobile or passive, does not determine the designation of those areas, the argument that the absence of an analysis of the impacts of passive gears is discriminatory cannot succeed.

Although the applicants also refer to recital 7 and to Article 16(1) of the basic regulation, to the legislative procedure and to Resolutions 61/105 and 64/72 adopted by the United Nations General Assembly and to the 2008 FAO Guidelines (see paragraph 25 above), it has already been noted that the systemic and teleological approach leads to a conclusion different from that proposed by the applicants. Moreover, in so far as the applicants seek to rely, on the basis of the abovementioned references, on arguments as to the absence of any adverse impact of passive gears, those issues fall within the second plea and will be analysed in that context. Similarly, the applicants cannot usefully derive arguments concerning the legality of the contested implementing regulation from the Commission’s initial proposal for the basic regulation.

The applicants also maintain that the scientific literature has recognised that longlines, unlike trawls, have no appreciable impact on the seabed. In that regard, it is appropriate to recall, on the one hand, the legislature’s reasoning, inherent in the definition set out in Article 2 of Regulation No 734/2008, to which Article 4 of the basic regulation refers, that passive gears are likely to have adverse impacts on VMEs. On the other hand, as will be analysed in greater detail in the context of the second plea, it must be noted that the evidence presented by the applicants before the Court does not make it possible to exclude the possibility that passive gears may also present risks of adverse impacts on VMEs, particularly during their repeated deployment and retrieval.

55Finally, in so far as the applicants argue, on the one hand, that the 2021 ICES advice, while indicating the differences between passive and mobile fishing gears, did not measure the intensity of fishing with those passive gears (such as longlines) and therefore the impact which they have on the seabed, it should be noted that it is apparent from the method used by ICES, in its 2021 advice, that it expressly stated that it was able to take account of fishing intensity only in relation to mobile gears, which were the only gears for which it had the relevant information. The applicants do not dispute, in a clear and precise manner, the absence of sufficiently precise information on the intensity of fishing by passive gears. Moreover, the purpose of taking into account that intensity of fishing with mobile gears was merely to assess the likelihood of the existence of a VME in areas with a ‘low’ presence index, which could already be irreversibly damaged so that the continuation of fishing activities would not be likely to cause further significant adverse impacts. On the other hand, the claims relating to the issue of the proportionality of the measure adopted will be assessed in the context of the relevant complaints in the second part of this plea.

56In the light of the foregoing, and subject to the findings in paragraphs 29 and 38, in fine, and 55 above, the Court must reject as unfounded the first complaint in the first plea, alleging infringement of Article 9(6) of the basic regulation and of the principle of non-discrimination on account of the identical treatment of passive and mobile fishing gears, without any objective reason, when determining the areas where VMEs are known to occur or are likely to occur.

(2)The second complaint, alleging that the contested regulation does not treat the EU waters of the north-east Atlantic in a uniform manner, in breach of the general principle of equal treatment and non-discrimination

57The applicants maintain, in essence, that it appears that, paradoxically, in the absence of information on the impact of fishing with passive bottom gears on the ecoregions of the Azores (Portugal) and the North Sea, the Commission decided to exclude them from the areas where fishing with passive and mobile bottom gears at a depth of between 400 and 800 metres is prohibited and, by contrast, in the absence of information on the impact of passive gears on the seabed in areas off the coasts of Spain, mainland Portugal, France and Ireland, the Commission decided to prohibit all bottom gears, whether passive or mobile, without distinction. This shows that the prohibition on passive bottom gears in the areas delimited by Annex II to the contested regulation is contrary to the general principle of equal treatment or non-discrimination, since longliners fishing in the North Sea and in western European waters are treated unequally, even though there is no objective justification for that difference in treatment. Moreover, Article 2 of and Annex II to that implementing regulation infringe the principle of proportionality in that their provisions exceed the limits of what is appropriate and necessary in order to attain legitimate objectives, in so far as those provisions prohibit fishing with passive gears without taking into account their impact on the seabed.

58The Commission disputes the applicants’ claims.

59In the present case, as is apparent from the explanations given by the Commission and from the 2021 ICES advice (heading ‘Geographical range’, pp. 2 and 12), the reasons for non-inclusion in the relevant list of areas where VMEs are known to occur or are likely to occur in the other territories, referred to by the applicants, are not linked to the fact that the impact of fishing with passive bottom gears on the ecoregions was not known, as they imply. In the case of the Azores region, on the one hand, it was the absence of information making it possible to predict the proven or probable presence in those areas which was relevant. On the other hand, as the Commission states, without this being contested, an additional analysis was requested from ICES, so that a list of the areas in question could be prepared in the future. With regard to the waters of Sweden and Denmark, the decisive factor, as was stated, was the absence of any fishing (and, more generally, of fishing authorisations) in the area(s) in question. Accordingly, it has not been demonstrated that the Commission treated comparable situations differently, or treated different situations in the same way, without objective justification.

60In the alternative, it should be pointed out that, even if the Commission failed to fulfil its obligation to include certain areas in the Azores region or in Swedish and Danish waters on the list of areas where VMEs are known to occur or are likely to occur, such an omission is not such as to vitiate the provisions of the contested regulation which include other areas in the north-east Atlantic on that list. Lastly, as regards the claims of infringement of the principle of proportionality, they will be examined in the context of the relevant part of this plea.

61In those circumstances, the applicants’ second complaint, alleging that the contested regulation does not treat the EU waters of the north-east Atlantic in a uniform manner, in breach of the general principle of equal treatment and non-discrimination, must be rejected as unfounded.

(3)The third complaint, alleging that the contested regulation is based on a methodology which closes off much larger areas in the southern waters than in the northern waters of the north-east Atlantic, in breach of the principle of non-discrimination

62The applicants, supported by the Kingdom of Spain, claim, in essence, that the contested regulation is contrary to the principle of non-discrimination in so far as it is based on the methodology recommended in the 2021 ICES advice, according to which the size of polygons changes and is larger the further south those polygons are located. The zones listed in Annex II to that implementing regulation are based on the ‘C-square’ unit of measurement, the size of which depends, according to the applicants, on the latitude at which that ‘C-square’ is located, and is therefore not uniform throughout the north-east Atlantic. This also means that the contested regulation is not consistent with the task entrusted to the Commission in the basic regulation, namely ‘to ensure uniform conditions for the implementation of this Regulation in respect of the determination of the existing fishing areas’.

63The Commission disputes the applicants’ arguments.

64By their claims, the applicants, while relying on the principle of non-discrimination, dispute, in essence, the appropriateness of the methodology used by the Commission, with the result that those claims overlap with those put forward in the context of the second complaint in the second part of this plea, which has been rejected as unfounded (see paragraphs 80 to 85 below). Consequently, the applicants’ claims put forward in the context of this complaint must also be rejected.

(b)Infringement of the principle of proportionality in that the list of areas where VMEs are known to occur or are likely to occur, adopted by the contested implementing regulation, exceeds the limits of what is appropriate and necessary in order to attain the objectives of the CFP

65The applicants, supported by the Kingdom of Spain and the Autonomous Community of Galicia, argue in essence that Article 2 of and Annex II to the contested regulation infringe the principle of proportionality, in that they impose an indiscriminate prohibition on fishing with bottom gears, first, in the absence of an impact assessment of passive gears, secondly, according to an inappropriate methodology and information for determining the size of the ‘C-squares’, thirdly, by additionally incorporating buffer zones into the ‘C-squares’ where VMEs are known to occur or are likely to occur for passive gears, even though it is impossible for those gears to reach those VMEs, and, fourthly, by failing to take into account the socioeconomic impact of the measures adopted on economic operators.

(1)The first complaint, alleging that, in the absence of information on the impact of passive gears on VMEs, the indiscriminate prohibition on fishing with passive and mobile gears in the list of areas where VMEs are known to occur or are likely to occur is manifestly inappropriate for achieving the objective of protecting the seabed

66In essence, the applicants, supported by the Kingdom of Spain and the Autonomous Community of Galicia, argue that Article 2(2) of the contested regulation prohibits fishing with mobile and passive gears, first, on the basis of an analysis of data relating exclusively to mobile gears, in that that analysis uses a swept-area ratio (‘SAR’) index, which takes into account only the impact of mobile gears on the basis of ‘C-squares’, and not the impact of passive gears (scenario 2 of the 2021 ICES advice), and, secondly, by choosing the most punitive version (scenario 2, option 1, of that advice), so that it includes ‘C-squares’ where the SAR threshold is not even exceeded and where, consequently, the ‘appreciable negative impact’ is not even certain as regards mobile gears, which are much more ‘aggressive’ than passive gears. In their view, the contested regulation constitutes a manifestly inappropriate and disproportionate measure, in view of the Commission’s failure to assess the impact on the seabed of passive fishing gears and, in particular, longlines with ‘no or a negligible impact’, when determining the fishing zones where they are prohibited.

67The Commission submitted its observations in that regard in the context of the first part of this plea.

68In the first place, in so far as the applicants submit that the contested regulation ‘prohibits’ fishing with mobile gears and passive gears, it should be noted that this complaint is inadmissible (see paragraph 21 above).

69In the second place, as regards the claims concerning the alleged manifestly inappropriate and disproportionate nature of the measure in question, it is settled case-law that the principle of proportionality, referred to in Regulation No 1380/2013, itself referred to in the basic regulation, is one of the general principles of EU law and requires that measures implemented through EU law provisions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (see, to that effect, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 51 and the case-law cited).

70It should also be borne in mind that the principle of proportionality requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question (see judgment of 11 January 2017, Spain v Council, C‑128/15, EU:C:2017:3, paragraph 71 and the case-law cited). It is settled case-law that, in order to satisfy the proportionality test, a measure must be capable of contributing to the objective pursued and not necessarily of attaining it by itself (judgment of 13 June 2018, Deutscher Naturschutzring, C‑683/16, EU:C:2018:433, paragraph 49 and the case-law cited).

71In that regard, as shown in Table 1 of the 2021 ICES advice, ICES provided for four different ways of delimiting areas containing VMEs (depending on the relevant scenario and option), in the first column of the table, and the implications for their management, in its second column. It is clear from those elements of the 2021 ICES advice and from the accompanying explanations that the level of fishing activity has been taken into account not as part of a fisheries management approach or of weighing up the competing interests, but rather in order to assess the likelihood of the presence of VMEs in areas with a ‘low’ presence index, which could already be irreversibly damaged so that the continuation of fishing activities would not be such as to cause further significant adverse impacts. In particular, the 2021 ICES advice shows that scenario 2 took account of the SARs established on the basis of empirical data, concerning the level of fishing activity, linked to significant adverse impacts and thus made it possible to assess the effects of fishing on the presence or absence of VMEs. As explained in paragraph 50 above, such an approach cannot be excluded in the context of the application of the precautionary principle.

72Even taking into account the second column of Table 1 of the 2021 ICES advice, concerning option 1 of scenario 2 and dealing with the ‘Management implication’, the emerging rationale is no different. It is stated therein that that option ‘prioritises protection of VMEs where they “are known to occur” or “are likely to occur”’ and includes ‘C‑squares with low VME index where fishing activity is also low and significant adverse impacts (SAIs) by past fishing are less likely’. As a whole, those elements indicate an approach related to the characteristics of the areas concerned. In any event, the final part of that description of the management implications, according to which this ‘offers VME protection at low cost to the fisher and highest protection of VMEs in the fishing footprint’, is simply an assessment of the effects of that scenario in terms of VME protection and its impact on fishing, which has not, however, been used as a further factor in determining the areas where VMEs are known to occur or are likely to occur additional to the elements set out on page 5 of the 2021 ICES advice, which coincide with the other factors set out in paragraph 40 above and in the first column of Table 1, on page 6 of that advice.

73As regards the applicants’ claim that the Commission took account of the ‘most punitive’ option, in that, by contrast with an option which, according to them, ‘prioritise[d] protection of VMEs, by taking into account the impact of fishing activities on them’ (option 2 of scenario 2 of the 2021 ICES advice), it chose a scenario ‘which prioritise[d] protection of VMEs regardless of fishing activity’ (option 1 of scenario 2 of that advice), it should be rejected since the Commission, in establishing the list of areas in question in accordance with Article 9(6) of the basic regulation, could not, in the context of the powers conferred on it to adopt an implementing regulation, strike a balance between the protection of VMEs and other objectives of the CFP. Accordingly, the applicants’ criticism as regards what is the choice of the ‘most punitive’ option, in the context of the use of the SAR index, is unfounded, and nor can the approach adopted by the Commission be regarded, on the basis of the abovementioned criticism, as being contrary to the case-law referred to in paragraphs 69 and 70 above. More specifically, it should be noted that option 1 of scenario 2, which is set out in the 2021 ICES advice and which was subsequently adopted by the Commission in the contested implementing regulation, is not based on a balancing of the protection of VMEs against other CFP objectives or on a fisheries management approach which could, moreover, be defined as being the ‘most punitive’, in particular by comparison with option 2 of scenario 2, described as ‘taking into account the impact of fishing activities on [VMEs]’ (see, also, paragraph 55 above).

74Consequently, in the present case, the applicants are not justified in criticising the Commission on the ground that the measures in question were manifestly inappropriate and disproportionate, on account of the Commission’s total failure to take into account and assess the impact of passive fishing gears on the seabed when determining the fishing areas where passive fishing gears in general and longlines in particular are prohibited, and in choosing the ‘most punitive’ of the options proposed by ICES in its 2021 advice.

75In those circumstances, the first complaint in this part of the first plea must be rejected as unfounded.

(2)The second complaint, alleging that the definition of the polygons listed in Annex II to the contested regulation is based on a methodology that is manifestly inappropriate in the light of the information available

76The applicants, supported by the Kingdom of Spain and the Autonomous Community of Galicia, argue that the 2021 ICES advice used information from its own database for the purpose of delimiting the ‘C-squares’. However, the Commission was informed by the Instituto Español de Oceanografía (IEO, Spanish Institute of Oceanography), before the adoption of the contested implementing regulation, that information available to the Member States made it possible to define the ‘C-squares’ much more precisely, on the basis of data collection techniques and distribution models at smaller scales and higher resolution. According to the IEO, the Commission was aware of that information, which came from projects that it had co-financed, such as the Indemares and Intemares projects.

77However, the applicants claim that the Commission disregarded that information when delimiting the zones in Annex II to the contested implementing regulation, with the result that the Member States were unable to supplement the zones mapped by ICES with their own information. The Commission thus failed to use the best available information as required by Article 9(6) of the basic regulation. That omission is, according to the applicants, incompatible with the achievement of the objective of protecting those ecosystems and, in any event, ‘disproportionate to the achievement of the objective of sustainable fishing’ provided for by the basic regulation and by the CFP itself. In their view, the fact that Member States use the ‘C-squares’ method to provide information on fishing activities is not inconsistent with the fact that that method is manifestly inappropriate for defining the areas where VMEs are known to occur or are likely to occur.

78According to the applicants, contrary to what the Commission asserts, the Northwest Atlantic Fisheries Organisation (NAFO) does not use that method, but uses the ‘Kernel’ density estimation method (Durán Muñoz, P., ‘Cold-water corals and deep-sea sponges by-catch mitigation: dealing with groundfish survey data in the management of the northwest Atlantic Ocean high seas fisheries’, Marine Policy, Vol. 116, 2020).

79The Commission disputes the applicants’ claims.

80As regards the applicants’ criticisms concerning the methodology based on the ‘C-square’ unit, the limitations of which lead, according to their claims, to an approach that is incompatible with achieving the objective of protecting VMEs and, in any case, disproportionate to the achievement of the objective of sustainable fishing provided for by the basic regulation and the CFP (see paragraph 77 above), it should be noted as a preliminary point that Article 9 of the basic regulation (including the FAO Guidelines to which it refers) does not contain any specific rules as to the particular methodology to be used when drawing up the list of areas where VMEs are known to occur or are likely to occur, in particular as regards the technical grid or coordinate system to be used as a cartographic reference, and those elements must therefore be regarded as falling within the discretion enjoyed by the Commission as regards application of the criteria for establishing the list of those areas (see paragraph 50 above). In such a context, if the Commission is to be able to pursue effectively the objective assigned to it, account being taken of the complex technical assessments which it must undertake, it must be recognised as enjoying a broad discretion (see, by analogy, judgment of 19 January 2012, Xeda International and Pace International v Commission, T‑71/10, not published, EU:T:2012:18, paragraph 69 and the case-law cited). In view of those factors, in the context of the Court’s examination of compliance with the principle of proportionality, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the Commission is seeking to pursue (see, by analogy, judgment of 9 September 2020, Slovenia v Commission, T‑626/17, EU:T:2020:402, paragraph 173).

It is in the light of those considerations, as well as those recalled in paragraphs 69 and 70 above, that the applicants’ arguments must be examined.

82First, ICES explained in its 2021 advice that, in essence, the approach in question, namely the use of the ‘C‑squares’ system with a resolution of 0.05° longitude by 0.05° latitude (about 15 km² (3 km × 5 km) at a latitude of 60°N), was a practical scale to collate, explore, and assess data relating to fishing activities in the marine environment. In that context, it referred to the modelled European Marine Observation Data Network (EMODnet) bathymetry data and the work of the NAFO, actually highlighting certain inaccuracies or shortcomings arising from the use of the ‘C‑squares’ methodology. ICES concluded on that point, however, that certain variations arising from the use of the methodology in question which were open to criticism ‘[could not] be resolved with the data available and [required] fundamental changes to the ICES VMS data call [or] fine-scale analysis by individual EU Member States’.

83Secondly, while it is true that the applicants and the Kingdom of Spain argue, in particular with reference to the IEO (see paragraph 76 above), that more precise information, mainly from the Indemares and Intemares projects, was available, those elements are not a sufficient basis for finding that the Commission manifestly exceeded its discretion in using the ‘C‑square’ methodology, that is to say that taken into account by ICES in its 2021 advice, or that the Commission has not used the best available scientific and technical information. The Commission not only bases its arguments on the fact that it was obliged to use the available data, compiled by means of that methodology, but also maintains that its approach took into account the characteristics of bottom fishing as well as the need to ensure uniform application of the basic regulation. In that regard, it referred to the ‘C‑squares’ method used both by Member States to identify fishing activities and by organisations such as the North-East Atlantic Fisheries Commission (NEAFC), of which the European Union is a member, to delimit prohibitions on fishing related to VMEs, similar to the prohibition established by the basic regulation. Moreover, the applicants and the Kingdom of Spain do not provide an effective and realistic alternative, in the light of the need to harmonise Member States’ approaches and implement Article 9(6) of that regulation in a uniform manner.

84Nor is it apparent from the reference to the IEO (see paragraph 76 above) and the claims linked to it (see paragraph 77 above) that the other data presented would be more accurate for all the relevant maritime areas taken into consideration by ICES in its 2021 advice and by the Commission in the contested implementing regulation, in particular at the date of adoption of the latter, or that any specific data used by ICES and the Commission might be regarded as rendering the method used manifestly inadequate on the basis of information provided by the applicants and the Kingdom of Spain or owing to the possibility of using other methods, such as the ‘Kernel’ method referred to as a density estimation method, a quantitative method for determining the distribution and extent of the areas where VMEs are known to occur allegedly used by NAFO (see paragraph 78 above). Moreover, it should be noted that ICES based its 2021 advice, inter alia, on bathymetry data derived from the EMODnet database, which are compiled with the help of a large group of stakeholders. Furthermore, as the Commission stated at the hearing, without being contradicted by the applicants or the Kingdom of Spain, although Article 9(6) of the basic regulation provided that Member States could draw up a list of areas where VMEs are known to occur or are likely to occur on which the Commission could rely (in addition to the ICES advice), the Kingdom of Spain did not propose such a list to the Commission.

85Accordingly, it does not follow from those claims that the Commission used, with the ‘C-squares’ method, a methodology which is manifestly inappropriate in the light of the information available, or that its approach is disproportionate to the objective pursued. The applicants’ second complaint must therefore be rejected as unfounded.

(3)The third complaint, alleging that the definition of the polygons listed in Annex II to the contested implementing regulation, which include buffer zones, is disproportionate and manifestly inappropriate for achieving the objective of protecting the seabed

86The applicants, supported by the Kingdom of Spain and the Autonomous Community of Galicia, argue, referring in essence to the buffer zones, that the methodology used by the Commission to delimit the size of the ‘C-squares’, as part of a grid system contingent on the identification at a given point of a VME, is manifestly erroneous and disproportionate when applied to passive gears and has no technical or scientific basis. They emphasise that the approach adopted by ICES in its 2021 advice, according to which, in essence, the location of mobile fishing gears (nets and gears) may differ considerably from that of the vessel (see paragraph 90 below), is appropriate to ensure the protection of VME habitats in each ‘C-square’ in the light of the uncontrolled movement of the nets of mobile gears when they are towed by a vessel. By contrast, that reasoning is illogical in the case of passive gears, in so far as the latter are fixed at a precise point in the aquatic environment and their movement is not significant. It is, in their view, ‘quite impossible that fishing activities with passive gears in buffer zones could ever come into contact with [VMEs]’.

87The applicants add that the Vice-Chair of the ICES Advisory Council, when explaining to the Parliament the report used by the Commission as scientific information supporting the contested implementing regulation, emphasised that ‘the analysis and the polygons selected were chosen on the basis of [mobile] gears and not passive gears’.

88The contested regulation fails to take this into account, according to the applicants, and thus imposes, in the context of the buffer zones, a restriction on fishing with passive gears which, far from being the most appropriate measure for achieving the objective of protecting VMEs, is extremely restrictive and unjustified, jeopardising the viability of fishing with those gears. The fact that the EU legislature established a buffer zone in Article 9(2) of the basic regulation does not endorse the Commission’s position. Accordingly, the Commission adopted Article 2 of and Annex II to the contested implementing regulation, in essence, in breach of the principle of proportionality, exceeding the limits of what is appropriate and necessary in order to attain the legitimate objectives of the CFP.

89The Commission disputes the applicants’ claims.

90As a preliminary point, it should be noted that, with regard to spatial buffers around closed ‘C‑squares’, the 2021 ICES advice states as follows:

‘Modern navigation systems provide a very accurate location of fishing vessels at sea. However, when fishing at depths of between 400 and 800 metres, the location of the fishing gear can differ substantially from the location of the vessel. ICES considers that a buffer of half of a C‑square around each C‑square would be appropriate to ensure the protection of VME habitats distributed along the edge of the C‑square. The choice of a half C‑square buffer rather than another distance was made primarily for the ease of implementation (ICES, 2020b). Previously, ICES advised (ICES, 2013) …, for VMEs occurring on flat or undulating seabed, a buffer zone of approximately two (> 500 m depth) or three times (< 500 m depth) the local depth …. Given the complexity of applying this advice in the current advice, ICES opted for a half C‑square buffer around each C‑square.’

91With regard to the applicants’ criticisms concerning the establishment of ‘buffer zones’, consisting, in essence, in the addition of ‘a half C-square’ to the already protected ‘C-squares’ containing VMEs, it should be noted that the establishment of buffer zones was necessary in order to ensure the effectiveness of Article 9(6) and (9) of the basic regulation and the effective protection of VMEs pursued by the combined application of those provisions.

92In the light of the relevant explanations contained in the 2021 ICES advice (see paragraph 90 above), the establishment of those buffer zones is intended to guarantee, in accordance with the precautionary principle, the protection of VME habitats which may be distributed along the edge of the ‘C‑squares’ and are therefore likely to be threatened by the fishing activities of vessels in the vicinity of those ‘C‑squares’, on account of the likely difference between the location of the vessel and that of the fishing gears, which is potentially significant in view of the relevant depths (between 400 and 800 metres).

93Consequently, although those buffer zones do not contain VME indicators and are therefore not likely, according to the data available to ICES and the Commission, to be VME areas, their establishment, as an essential part of the areas where VMEs are known to occur or are likely to occur, is consistent with the objectives of protecting those VMEs, pursued by Article 9 of the basic regulation, and is necessary for the effective and uniform implementation thereof (see, by analogy, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 51 and the case-law cited). Accordingly, the applicants’ complaint that the inclusion of buffer zones in the areas where VMEs are known to occur or are likely to occur, established by the contested implementing regulation, is a measure which is manifestly inappropriate for protecting the seabed and disproportionate (see paragraph 86 above), cannot succeed, and nor can the socioeconomic claims relating to the viability of fishing activities with passive gears (see paragraph 88 above), which are not taken into consideration at that stage of the analysis.

94Moreover, since the protection of VMEs referred to in Article 9 of the basic regulation concerns the risk associated with fishing with bottom gears in general, the fact that the abovementioned risk is created above all by mobile gears is not such as to exclude or limit the possibility for the Commission to establish such zones in the exercise of its powers. Accordingly, with regard to the actual delimitation of the buffer zones, the question whether it was possible to establish an ‘authorisation to fish’ with passive gears in the buffer zones, a measure supported by the applicants in their pleadings before the Court, is also ineffective. In any event, as is clear from paragraphs 149 and 151 below, it cannot be ruled out that, owing to water currents or lateral movements during retrieval, passive gears could move (or even be lost) accidentally, so as to cause damage to VMEs.

95As regards the applicants’ complaint that the principle of proportionality has been infringed on account of the extent of the buffer zones (see paragraph 88 above), it should be noted that, in view of the essentially technical nature of the elements of the methodology followed by the Commission, the Court’s review is confined, in accordance with the case-law referred to in paragraph 80 above, to an examination of the manifestly disproportionate nature of the size of those zones in relation to the objective of establishing them, which concerns prevention of the probable risk referred to above, which is itself associated with fishing with bottom gears in general. However, the applicants have not succeeded in demonstrating that the size of the zones in question is manifestly inappropriate.

96Indeed, the applicants have not provided specific and detailed evidence from which it can be inferred that the approach of opting to add a buffer zone of ‘half of a C‑square’ around each ‘C‑square’, based on the potentially significant difference between the location of the vessel and that of the fishing gear, in the case of fishing carried out at depths of between 400 and 800 metres, was manifestly inappropriate. While it is true that the calculations concerning the dimensions of the buffer zones carried out by the Organisation des pêcheurs de Bretagne, produced by the applicants, as well as data provided by the parties in response to a question put by the Court during the hearing, establish the significant scale of the buffer zones, this is not a factor which can alter the foregoing analyses.

97Moreover, in so far as the applicants’ claims, recalled at the beginning of paragraph 86 above, might be interpreted as also seeking the closure of areas allegedly free of VMEs, enclosed between ‘C-squares’ containing VMEs, it should be noted, on the one hand, that the explanations given by ICES in the 2021 advice relate to the fact that fishing vessels were unlikely to be able to fish effectively in very small areas without the risk of impacting adjacent closed areas and that it was necessary to avoid the risk of harm in areas where VMEs are known to occur or are likely to occur from fishing activities carried out in adjacent areas (see the 2021 ICES advice, page 16). Those considerations are therefore similar to those already analysed in the context of buffer zones of ‘half of a C‑square’ and are covered by the objective of ensuring the effectiveness of the protection of the areas where VMEs are known to occur or are likely to occur.

98On the other hand, the 2021 ICES advice also showed that the enclosed areas in question ‘[were] more likely to contain VMEs than other areas without records since they [were] surrounded by VME C‑squares’. It was inferred from this that they might just represent a lack of data in relation to the VMEs present. Such an explanation as to the reasons for the closure of those areas is sufficient in the light of the precautionary principle, while taking into account the discretion which the Commission enjoyed in that sphere (see paragraph 50 above).

99In view of the foregoing, it has not been established that the Commission acted in a manifestly inappropriate manner and infringed the principle of proportionality when defining the polygons listed in Annex II to the contested implementing regulation, which include buffer zones. In those circumstances, the applicants’ third complaint must be rejected.

(4)The fourth complaint, alleging that the failure to take into consideration the economic and social impact in delimiting the areas listed in Annex II to the contested regulation is contrary to the principle of proportionality and the CFP

100The applicants, supported by the Kingdom of Spain and the Autonomous Community of Galicia, argue that the conservation of marine biological resources in the context of the CFP is an exclusive competence of the European Union under Article 3(1)(d) TFEU. According to the applicants, Regulation No 1380/2013 includes within its scope the conservation of marine biological resources and the management of the fisheries and fleets exploiting those resources. They also argue that Article 2(1) of that regulation provides that the CFP is to ensure that fishing activities are environmentally sustainable in the long term and, moreover, are managed ‘in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies’. Consequently, in accordance with the CFP, in the applicants’ view, both the basic regulation and the contested regulation must provide for measures contributing to the management of fishing activities in a manner which is environmentally sustainable and consistent with achieving economic, social and employment benefits.

101In the present case, according to the applicants, the Commission has failed to take into account any type of economic or social information when establishing the list of areas where VMEs are known to occur or are likely to occur. In their view, the Commission has completely disregarded the specific impact which the prohibitions imposed by the contested regulation will have on the volume of catches, turnover, profitability, viability and employment of the undertakings concerned. In the absence of such an analysis, the Commission was not in a position to assess which measures might have been less restrictive and therefore more appropriate and proportionate to the achievement of the objectives of protecting the seabed. Accordingly, the Commission exceeded the limits of its discretion. In the first place, according to the applicants, none of the approaches proposed by ICES incorporates specific economic or socioeconomic considerations concerning the impact of the prohibitions on fishing activity. In the second place, nor has the Commission collected any economic, social or employment-related information through channels other than ICES or consulted the sector concerned in that regard. Consequently, according to the applicants, the Commission was unable to assess whether the measure adopted was proportionate and the least onerous for the purposes of achieving the objectives pursued, or whether it complied with Article 6(2) of Regulation No 1380/2013.

102The Commission disputes the applicants’ claims and considers that they form part of a single response with other claims concerning infringement of the principle of proportionality, in the context of the second plea.

103As already noted in paragraphs 31 to 51 above, Article 9(6) of the basic regulation requires neither an assessment of the significant adverse impacts of passive gears in each area where VMEs are known to occur or are likely to occur set out in the list in question nor a management approach, or even a management approach which includes an assessment of the consequences of measures to protect VMEs on fishing activities and on economic and social life. As for the applicants’ arguments concerning the basic regulation (see paragraph 100 above), those issues will be assessed in the context of the second plea.

104Subject to that reservation, the applicants’ fourth complaint, alleging that the failure to take account of the economic and social impact when delimiting the areas listed in Annex II to the contested regulation is contrary to the principle of proportionality and the CFP, and consequently the first plea in law in its entirety, must be rejected.

2.The second plea in law, raising an objection of illegality in respect of Article 9(6) and (9) of the basic regulation, on account of an erroneous reference to implementing acts for the purpose of establishing uniform conditions for implementation and on the ground that those provisions are contrary to the principle of proportionality and infringe the rules of the CFP

(a)Preliminary considerations on the objection of illegality

105In their second plea in law, the applicants raise an objection of illegality in respect of the basic regulation in the event that the first plea is not upheld. This plea is divided into two parts. The first part concerns Article 9(6) of the basic regulation, in that its reference to an implementing act in order to supplement the essential elements provided for therein infringes Article 291(2) TFEU. The second part alleges that the indiscriminate prohibition on fishing with bottom gears in areas where VMEs are known to occur or are likely to occur, established by Article 9(9) of that regulation, infringes the rules of the CFP and the principle of proportionality.

106There is a connecting factor between the contested regulation and the rule the illegality of which is pleaded. On the one hand, the Commission adopted that implementing regulation in order to implement Article 9 of the basic regulation, in particular, paragraph 6 thereof, which entrusts the Commission with drawing up the list of areas where VMEs are known to occur or are likely to occur. On the other hand, inclusion in that list, in accordance with Article 9(9) of that regulation, entails a prohibition on fishing with bottom gears in the area concerned.

107The Commission, supported by the Council and the Parliament, argues that the second plea is inadmissible in so far as it raises, pursuant to Article 277 TFEU, an objection of illegality against Article 9(9) of the basic regulation. They argue, in essence, that Article 2 of the contested regulation is based solely on Article 9(6) of the basic regulation.

It is clear from the case-law that the purpose of Article 277 TFEU is not to allow a party to contest the applicability of any act of general application in support of any action whatsoever. The act the legality of which is called in question must be applicable, directly or indirectly, to the issue with which the action is concerned (judgment of 13 July 1966, Italy

v Council and Commission, 32/65, EU:C:1966:42, p. 409; see also judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraph 45 and the case-law cited).

109Moreover, a direct legal connection between the contested measure and the general measure at issue, the legality of which is called in question, exists in particular where the general measure constitutes the legal basis for the directly contested, individual or regulatory, measure (see judgment of 17 December 2020, BP v FRA, C‑601/19 P, not published, EU:C:2020:1048, paragraph 29, as regards individual measures).

110In the present case, it should be noted that it is not disputed that Article 9(6) of the basic regulation constitutes the legal basis for Article 2 of the contested implementing regulation, which refers thereto in its preamble, thereby rendering the objection of illegality admissible as regards that provision, in accordance with the case-law cited in paragraphs 108 and 109 above.

111By contrast, with regard to the plea of inadmissibility raised by the Commission, the Council and the Parliament, concerning the objection of illegality in respect of Article 9(9) of the basic regulation, the Court considers it appropriate to assess the merits of that objection without examining the issue of its admissibility.

(b)The first part of the second plea in law, alleging infringement of Article 291(2) TFEU in that Article 9(6) of the basic regulation refers to an implementing act in order to supplement its essential elements

112The applicants maintain, in essence, that in order for the conferral of an implementing power on the Commission to be compatible with Article 291(2) TFEU, that implementing power must create uniform conditions for implementing legally binding EU acts and must leave the Commission no discretion in their implementation.

113In the present case, according to the applicants, the list of areas where VMEs are known to occur or are likely to occur, adopted by the Commission, was the result of a choice made by the institution on the basis of scenarios presented to it by ICES and which were based on ICES variables allowing for the adoption of multiple combinations and alternatives. The latter differed in the degree to which they protected VMEs and affected fishing activities. Accordingly, the Commission did not merely ensure the uniform implementation of the basic regulation, but carried out an assessment and made a choice by weighing up divergent interests, when it adopted the list of those areas, on the basis of option 1 of scenario 2 presented by ICES. Moreover, it decided, at its own discretion, to exclude the waters of the North Sea and the Azores from the scope of application. Consequently, that list constitutes a political choice that should have been left to the EU legislature.

114According to the applicants, Article 9(6) and (9) of the basic regulation cannot refer to an implementing act or a delegated act for the establishment of the list of areas where VMEs are known to occur or are likely to occur, since that list does not establish uniform conditions for implementation and is intended, moreover, to supplement or amend essential elements. In their reply, the applicants argue that, contrary to what the Commission submits, the implementing power conferred on it by Article 9(6) of the basic regulation infringes Article 291(2) TFEU, in so far as it does not guarantee that the prohibition on fishing with all bottom gears applies under uniform conditions.

115The Commission, supported by the Council and the Parliament, disputes the applicants’ claims.

116Under Article 291(2) TFEU, where uniform conditions for implementing legally binding EU acts are needed, those acts are to confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 TEU, on the Council.

117As regards the limits of the implementing powers referred to in Article 291(2) TFEU, it should be recalled that the adoption of the essential rules of a matter is reserved to the EU legislature. It follows that the provisions laying down the essential elements of the basic legislation, the adoption of which requires political choices falling within the responsibilities of that legislature, cannot be delegated or appear in implementing acts, referred to in Article 290 TFEU (judgment of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraph 41).

118Moreover, identifying the elements of a matter which must be categorised as essential must be based on objective factors amenable to judicial review, and requires account to be taken of the characteristics and particular features of the field concerned (judgment of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraph 42).

119The implementing powers conferred on the Commission and the Council under Article 291(2) TFEU entail, in essence, the power to adopt measures which are necessary or appropriate for the uniform implementation of the provisions of the legislative act on the basis of which they are adopted and which merely specify the content of that act, in compliance with the essential general aims pursued by that act, without amending or supplementing it, in its essential or non-essential elements (judgment of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraph 49).

120In particular, it must be held that an implementing measure merely specifies the provisions of the legislative act concerned where it is intended solely, in general or in certain specific cases, to clarify the scope of those provisions or to determine the detailed rules for their application, provided, however, that in so doing, that measure avoids any contradiction with the objectives of those provisions and does not in any way alter the normative content of that act or its scope of application (judgment of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraph 50).

121In analysing the objection of illegality in respect of Article 9(6) of the basic regulation, it is necessary to examine whether the latter seeks to lay down elements going beyond what is provided for by the abovementioned case-law.

122In the present case, it is therefore necessary to examine whether Article 9 of the basic regulation makes reference to an implementing act solely in order to clarify its provisions or in order to supplement their essential or even non-essential elements, in breach of Article 291 TFEU, as the applicants maintain.

123As stated by the Commission, supported by the Council and the Parliament, it should be noted that the implementing acts referred to in the first sentence of Article 9(6) of the basic regulation, concerning the establishment of a list of areas where VMEs are known to occur or are likely to occur, merely specify those areas and thus give concrete expression ratione loci to the protection regime for VMEs adopted by that article, taking into account the realities of the seabed and marine environments, as shown by the available data, on the basis of the procedure and in accordance with the substantive criteria provided for by that article. In that regard, it should be recalled that the essential elements concerning the definition of and criteria for identifying a VME (Regulation No 734/2008, the 2008 FAO Guidelines and the precautionary principle), the VME indicators (Annexes III and IV to the basic regulation) and the procedure for establishing the list of such ecosystems (taking into account the best available scientific and technical information and the assessments and identifications made by the Member States and the Commission’s scientific advisory body) are already set out in Article 9 of the basic regulation. In order to respond to the need to lay down uniform conditions for implementing the protective measures introduced by that article, they had to be established at EU level.

124The Commission established the list of areas where VMEs are known to occur or are likely to occur, referred to in Article 9(6) of the basic regulation, on the basis of sufficiently clear and precise substantive criteria for VMEs and following a procedure also defined by the basic regulation. It is true that that provision conferred on the Commission a certain margin of discretion in the application of those criteria. However, this is compatible with its implementing power, in accordance with the case-law according to which, in the context of implementing the basic regulation, the Commission is not lacking all discretion, in particular when establishing the precise methodology relating to the application of the criteria laid down by the legislature in that regulation (see, to that effect, judgment of 23 September 2015, Netherlands v Commission, T‑261/13 and T‑86/14, EU:T:2015:671, paragraph 44).

125Moreover, with regard to the applicants’ arguments that, in essence, the Commission made, in the present case, discretionary political and economic choices, because of the conferral of powers infringing Article 291 TFEU (see arguments recalled in paragraphs 113 and 114 above), and as already found in the context of the first plea, it must be pointed out that the Commission was not entitled to make such choices concerning the conservation of marine ecosystems and resources (see paragraphs 45 to 51 above). Furthermore, in so far as the abovementioned claims of the applicants relate to the action actually taken by the Commission when adopting the contested implementing regulation, they are ineffective in the context of the objection of illegality concerning the basic regulation.

126More generally, concerning the powers to manage fisheries policy which are alleged to have been conferred on the Commission, it has already been pointed out, in the context of the first plea, that, contrary to the applicants’ claims, the Commission was acting within the framework of its powers to implement and not to manage fisheries policy (see, in particular, paragraphs 50 and 51 above). In that context, it was also noted that the Commission could take into account elements relating to the fishing operations carried out, in order to assess the likelihood of the (continued) presence of VMEs whose integrity could be threatened by bottom gears having significant adverse impacts. That approach was consistent with the objective of taking into account the realities of the seabed and marine environments as shown by the available data (see paragraph 123 above).

127In those circumstances, the first part of the second plea in law, alleging infringement of Article 291(2) TFEU in that Article 9(6) of the basic regulation refers to an implementing act in order to supplement its essential elements, must be rejected as unfounded.

(c)The second part of the second plea in law, alleging, in essence, that the indiscriminate prohibition on fishing with bottom gears laid down in Article 9(9) of the basic regulation infringes the principle of proportionality and the rules of the CFP, as well as the inadequate statement of reasons in that regard

128The applicants, supported by the Kingdom of Spain and the Autonomous Community of Galicia, argue in essence that the indiscriminate prohibition laid down by Article 9(9) of the basic regulation is incompatible with the rules of the CFP and the principle of proportionality. A prohibition on fishing which differs depending on the gears, by reference to their impact on the seabed, on the basis of the best scientific, technical and economic information, would, in their view, have been an appropriate and proportionate measure. Such a claim, relating to the absence of any distinction drawn by the legislature, can also be interpreted as seeking to raise a complaint that the legislature failed to fulfil its obligation to state the reasons for the choice of the measure in question.

129On the one hand, according to the applicants, Article 9(9) of the basic regulation indiscriminately prohibits fishing with bottom gears, without the exact content of that prohibition being known. On the other hand, recital 7 of the basic regulation expressly describes bottom trawls as gears whose impact on the seabed carries ‘a higher risk for VMEs among the different gears used and reports the highest rates of unintended catch of deep-sea species’. In line with that observation, Article 8(4) of that regulation prohibits the issue of any authorisation for the purpose of ‘fishing with bottom trawls at a depth below 800 metres’.

130It is therefore paradoxical and unlawful, according to the applicants, that the basic regulation itself identifies bottom trawls as gears having a major impact on the seabed, but nevertheless provides that in the future fishing with all bottom gears, regardless of the type of bottom fishing concerned, must be prohibited indiscriminately, irrespective of their actual impact on marine ecosystems and irrespective of the socioeconomic impact of such a prohibition. Such a prohibition is completely disproportionate.

131In their reply, the applicants argue in essence that the basic regulation should provide for measures contributing to the management of fishing activities which are environmentally sustainable and consistent with achieving economic, social and employment benefits (objectives of the CFP). In their view, none of the elements relied on by the institutions is useful in demonstrating that passive gears, in particular longlines, have a significant effect on marine ecosystems.

132Lastly, referring to the amendments made during the legislative procedure which led to the adoption of the basic regulation, the applicants state that the Interinstitutional Agreement between the Parliament, the Council of the European Union and the European Commission on Better Law-Making (OJ 2016 L 123 pp. 1 to 14, paragraph 15) provides that the Parliament and the Council will, when they consider this to be appropriate and necessary for the legislative process, carry out impact assessments in relation to their ‘substantial amendments’ to the Commission’s proposal. According to the applicants, in the present case, in spite of the introduction of a substantial amendment to Article 9(9) of the basic regulation, since a general prohibition has been added to the ‘less stringent measures’ proposed by the Commission, the legislature has not carried out any impact assessment demonstrating the appropriateness and necessity of its amendment, and nor has it taken the Commission’s impact assessment into account.

133In the light of the foregoing considerations, it must be concluded, according to the applicants, that the prohibition on fishing with any bottom fishing gears, laid down in Article 9(9) of the basic regulation, infringes the principle of proportionality and is manifestly inappropriate for achieving the objective of protecting the seabed.

134The Commission, supported by the Council and Parliament, disputes the claims of the applicants, the Kingdom of Spain and the Autonomous Community of Galicia.

135In that regard, it should be noted, as a preliminary point, that it follows in particular from Article 2(1) to (3) and (5)(a), (f), (i) and (j) and Article 4(1)(8) and (9) of Regulation No 1380/2013, in essence, that the long-term environmental sustainability of fishing activities involves minimising the impacts of those activities on the marine ecosystem, by applying the precautionary approach to fisheries management as well as the ecosystem-based approach.

136In particular, as regards sustainability, the precautionary approach and the ecosystem-based approach, Article 2 of Regulation No 1380/2013, entitled ‘Objectives’, is worded as follows:

‘1. The CFP shall ensure that fishing and aquaculture activities are environmentally sustainable in the long-term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies.

…

…’

137Article 4 of Regulation No 1380/2013, entitled ‘Definitions’, provides as follows in paragraph (1)(9) and (20) thereof:

‘1. For the purpose of this Regulation the following definitions shall apply:

…

(9)“ecosystem-based approach to fisheries management” means an integrated approach to managing fisheries within ecologically meaningful boundaries which seeks to manage the use of natural resources, taking account of fishing and other human activities, while preserving both the biological wealth and the biological processes necessary to safeguard the composition, structure and functioning of the habitats of the ecosystem affected, by taking into account the knowledge and uncertainties regarding biotic, abiotic and human components of ecosystems;

…

(20)“technical measure” means a measure that regulates the composition of catches by species and size and the impacts on components of the ecosystems resulting from fishing activities by establishing conditions for the use and structure of fishing gear and restrictions on access to fishing areas;

…’

138Article 6 of Regulation No 1380/2013, entitled ‘General provisions’, under the title ‘Conservation measures’, provides in paragraph 1 thereof as follows:

‘1. For the purpose of achieving the objectives of the CFP in respect of the conservation and sustainable exploitation of marine biological resources as set out in Article 2, the Union shall adopt conservation measures as set out in Article 7.’

139Pursuant to Article 7 of Regulation No 1380/2013, entitled ‘Types of conservation measures’:

‘1. Measures for the conservation and sustainable exploitation of marine biological resources may include, inter alia, the following:

…

(b)targets for the conservation and sustainable exploitation of stocks and related measures to minimise the impact of fishing on the marine environment;

…

(j)technical measures as referred to in paragraph 2. …

2.Technical measures may include, inter alia, the following:

(a)characteristics of fishing gears and rules concerning their use;

…

(c)limitations or prohibitions on the use of certain fishing gears, and on fishing activities, in certain areas or periods;

…’

140In the balancing of the interests involved, which is inherent in the adoption of measures for the conservation of marine biological resources (see, to that effect, judgment of 15 April 2021, Netherlands v Council and Parliament, C‑733/19, not published, EU:C:2021:272, paragraph 52), the legislature enjoys a broad discretion, corresponding to the political responsibilities conferred on it by Articles 40 to 43 TFEU. Its choice to adopt such measures, aimed at minimising the impact of fishing activities on the marine ecosystem, by applying the precautionary approach to fisheries management and the ecosystem-based approach, is subject to a review by the EU judicature which must be confined to ascertaining whether the exercise of that competence is vitiated by a manifest error or misuse of power or whether the legislature has clearly exceeded the bounds of its discretion (see, to that effect, judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 80).

141More specifically, in that context, the legislature is not required to carry out a specific and reasoned weighing up of the interest of protecting the marine environment, related to the sustainable exploitation of marine biological resources, against the interests of persons engaged in fishing activities and the socioeconomic aspects of those activities. In the context of technical measures, the author of the measure is not required to provide a specific statement of reasons for its choice if the contested measure clearly discloses the essential objective pursued (judgment of 16 November 2023, Spain v Council (Supplementary conservation measures in the Western Mediterranean), C‑224/22, not published, EU:C:2023:891, paragraphs 36 and 44). In so far as the applicants seem to claim that the legislature has failed to fulfil its obligation to state reasons for the choice of the measure in question (see paragraph 128 above), a statement of reasons which must, in their view, include a specific assessment of the impact of passive bottom gears on VMEs, in order to weigh up the interest of protecting the marine environment from that impact against the socioeconomic aspects of fishing activities using such gears and the socioeconomic consequences of the prohibition in question, that complaint must be rejected.

142On the one hand, it should be noted that recital 1 of the basic regulation refers to the precautionary principle and to the ecosystem-based approach.

143On the other hand, as is clear from recital 9 of the basic regulation, the measure provided for in Article 9(9) of that regulation is specifically intended to minimise the possible impact of fishing activities occurring in deep-sea waters on VMEs. Therefore, it is indeed a measure which falls within the scope of the implementation of the fundamental approaches set out in Article 2(2) and (3) of Regulation No 1380/2013, to which the considerations set out in paragraphs 140 and 141 above are applicable.

144However, the applicants have failed to demonstrate that the legislature has clearly exceeded the bounds of its discretion in adopting the prohibition provided for by Article 9(9) of the basic regulation.

145First, as is clear from Article 9(1) of the basic regulation, that regulation is to apply only to fishing operations with bottom gears below a depth of 400 metres. Consequently, the prohibition referred to in Article 9(9) of that regulation does not apply to fishing with those gears at a depth of 400 metres or less.

146Secondly, the legislature’s reasoning that passive gears are likely to have adverse impacts on VMEs is inherent in the definition set out in Article 2 of Regulation No 734/2008, to which Article 4 of the basic regulation refers (see paragraphs 31 to 36 above). The applicants do not dispute the legality of those provisions, which are, moreover, consistent with the approach adopted by the NEAFC in its Recommendation 19:2014 of 23 June 2014 (Recommendation on area management measures for the protection of vulnerable marine ecosystems in the NEAFC Regulatory Area).

147Thirdly, it should be noted that, while the applicants dispute the possibility that passive gears, in particular demersal longlines, may also pose risks of adverse impacts on VMEs, they have failed to demonstrate that such a risk is entirely excluded, particularly during the repeated deployment and retrieval of those gears. In that regard, it should be noted that the possible existence of such risks is, moreover, referred to in the document of the Parliament (Policy Department for Structural and Cohesion Policies) of 7 December 2007 entitled ‘Workshop on deep sea stocks management’, which states that ‘not only towed gears but also fixed nets and longlines may be detrimental to cold water corals’ and that ‘when lost on the bottom, nets are also presumed to keep catching fish, an effect known as ghost fishing’. That possibility is, incidentally, also confirmed in an initial ICES advice of 28 June 2018 (Advice on locations and likely locations of [vulnerable marine ecosystems] in EU waters of the NE Atlantic, and the fishing footprint of 2009-2011). In fact, the evidence adduced by the applicants before the Court, read as a whole, does not demonstrate to the requisite legal standard an absence of adverse impacts of passive gears, but rather demonstrates lesser impacts by comparison with mobile gears (see, also, paragraph 151 below).

148In that regard, the article by Pham, Ch. K., Diogo, H., Menezes, G., Porteiro, F., Braga-Henriques, A., Vandeperre, F., and Morato, T., ‘Deep-water longline fishing has reduced impact on Vulnerable Marine Ecosystems’, Scientific reports, No 4/4837, April 2014, produced by the Parliament, acknowledges some adverse impacts of passive gears (longlines), while highlighting, on the one hand, that that risk is much lower than that of mobile gears and, on the other hand, that existing data on longlines are limited. It is also noted that the impact of longlines could, in particular, affect organisms having a complex morphology, with destabilising effects on the ecosystem concerned.

149Similar indications of possible negative impacts associated with passive gears are to be found in other evidence, such as the article by Clark, M.R., Althaus, F., Schlacher, T.A., Williams, A., Bowden, D.A., and Rowden, A.A., ‘The impacts of deep-sea fisheries on benthic communities: a review’, ICES Journal of Marine Science, Vol. 73, 2016, pp. i51 to i69, which was produced by the Parliament, according to which ‘recent studies on longline fisheries show that their impact is much less than from trawl gear, but [that it] can still be significant’. According to that article, ‘in certain conditions, for example during retrieval, [passive] gear may move laterally across the seabed, resulting in impacts to the habitat and biota’ and ‘longline impacts on sessile fauna such as sponges and corals have been observed, where the animals have been broken by longline weights or by the mainline cutting through them while moving laterally during fishing or hauling’.

150Moreover, as is clear from the definition in Article 2 of Regulation No 734/2008, the adverse impacts of bottom gears are evaluated individually, in combination or cumulatively. Accordingly, the impacts of passive gears may aggravate those of mobile gears, the importance of which is not disputed by the applicants. That approach enables VMEs to be protected in a manner which is compatible with the precautionary approach and the ecosystem-based approach to fisheries management, which form an integral part of the CFP under Article 2 of Regulation No 1380/2013.

151Accordingly, the applicants have not provided sufficiently precise and convincing evidence to establish that passive gears were free of adverse impacts, with the result that it is possible, in an ecosystem-based and precautionary approach, to exclude the risk, established to the requisite legal standard by the elements set out in paragraphs 148 to 150 above, that those fishing gears pose in relation to VMEs. Nor can the references made at the hearing to the fact that passive gears, in particular longlines, are fixed and fitted with geolocation devices be considered conclusive in that regard. As noted in paragraph 149 above, it cannot be ruled out that, owing to water currents or lateral movements during retrieval, passive gears could move (or even be lost) accidentally, so as to cause damage to VMEs on account of their contact with the seabed or with reefs which may be particularly sensitive (see paragraph 148 above). However, in the light of the precautionary principle, referred to in Regulation No 1380/2013, itself referred to by the basic regulation, the legislature was not required to demonstrate conclusively the existence of significant impacts of passive gears. While it is true that the applicants also submitted to the Court, as an annex to the application, a study from the Xunta de Galicia (Government of the Autonomous Community of Galicia), ‘Estudio Comportamiento e Impacto de las Artes de Pesca en el Fondo Marino’ (Study: Behaviour and impact of fishing gears on the seabed), which shows, at least for demersal longlines, that they had no negative impacts, it must be noted, on the one hand, that this is a document prepared in the context of the present proceedings (as the applicants themselves pointed out at the hearing), whose author’s independence from the intervener (the Autonomous Community of Galicia) it is impossible to assess, and, in any event, it is merely a single scientific opinion contrary to those already analysed above, which is not sufficient to cast doubt on them. Moreover, it has not been demonstrated that a similar study existed at the date of adoption of the basic regulation. For similar reasons, the references made by the applicants at the hearing to certain recent analyses by the IEO, which were not submitted during the written part of the procedure before the Court and are therefore not part of the case file, are irrelevant.

152In the light of the foregoing, the EU legislature, exercising its wide discretion in the matter (see, by analogy, judgment of 23 March 2006, Unitymark and North Sea Fishermen’s Organisation, C‑535/03, EU:C:2006:193, paragraph 57), could consider it necessary, in order to avoid the risk of harmful effects of passive gears on VMEs, notwithstanding the likely negative socioeconomic effects, to prohibit fishing with bottom gears in general in areas where VMEs are known to occur or are likely to occur. In that context, as noted in paragraph 140 above, the legislature was not required to carry out a specific and reasoned weighing up of the interest of protecting the marine environment against the interests of persons engaged in fishing activities and the socioeconomic aspects of those activities. In that regard, it should be recalled that ensuring that fishing activities are environmentally sustainable in the long-term constitutes a fundamental objective of the CFP (Article 2(1) of Regulation No 1380/2013), the achievement of which serves not only the protection of the marine ecosystem, but also the long-term environmental, economic, and social sustainability of fishing activities.

153It should be added that, as the Commission argued at the hearing and as is also clear from the claims of the Council and the Parliament, the legislature acted taking into account the impact assessment, which the Commission had prepared, of several options emerging from its initial proposal, one of which was that finally adopted by it. All those factors were taken into consideration by the legislature in exercising its discretion when adopting the conservation measures.

154Fourthly, as the Parliament argues, the legislature’s choice was similar to that in the NEAFC rules. The legislature’s approach also corresponded, in essence, to the objective provided for in paragraph 83(c) of United Nations General Assembly Resolution 61/105.

155It must be concluded that the applicants have not adduced any evidence to show that the legislature manifestly exceeded the limits of its broad discretion, in breach of the principle of proportionality, in prohibiting fishing with passive bottom gears, below a depth of 400 metres, in areas identified as those where VMEs are known to occur or are likely to occur, in order to minimise the impact of deep-sea fishing activities on VMEs, in accordance with the precautionary principle and in the context of implementation of the ecosystem-based approach to fisheries management.

156In those circumstances, without it being necessary to examine its admissibility, the second part of the second plea in law and, consequently, the plea as a whole, must be rejected, including the applicants’ claims submitted in the context of the first plea in law, but interpreted as falling within the second (see paragraphs 29, 38, in fine, and 103 above).

157The action must therefore be dismissed in its entirety.

IV.Costs

158Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

159Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Kingdom of Spain, the Parliament and the Council must therefore bear their own costs.

160Lastly, under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) of those rules to bear its own costs. In this case, the Autonomous Community of Galicia must bear its own costs.

On those grounds,

hereby:

1.Dismisses the action;

2.Orders Madre Querida, SL and the other applicants whose names are listed in the annex to bear their own costs and to pay those incurred by the European Commission;

3.Orders the Kingdom of Spain, the European Parliament, the Council of the European Union and the Comunidad Autónoma de Galicia (Autonomous Community of Galicia, Spain) to bear their own costs.

Papasavvas

Kowalik-Bańczyk

Buttigieg

Dimitrakopoulos

Ricziová

Delivered in open court in Luxembourg on 11 June 2025.

[Signatures]

*

Language of the case: Spanish.

The list of other applicants is annexed only to the version sent to the parties and to the addressees referred to in Article 55 of the Statute of the Court of Justice of the European Union.