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‑681/22,

Kingdom of Spain,

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

applicant,

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 its action under Article 263 TFEU, the Kingdom of Spain seeks the annulment of 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’), as regards the establishment of the list set out in Article 2 of and Annex II to that regulation.

Background to the dispute

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 2009-2011.

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 2009–2011.

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 identified 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 regulation, based in particular on Article 9(6) of the basic regulation.

11Article 2(1) of the contested regulation provides:

‘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.’

Forms of order sought

12The Kingdom of Spain claims that the Court should:

–annul the contested regulation, as regards the establishment of the list of areas where VMEs are known to occur or are likely to occur, referred to in Article 2 of and Annex II to that implementing regulation;

–in the alternative, declare Article 9(6) and (9) of the basic regulation invalid, pursuant to Article 277 TFEU;

–order the Commission to pay the costs.

13The Commission contends that the Court should:

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

–order the Kingdom of Spain to pay the costs.

14The Council of the European Union contends that the Court should:

–reject the second plea in law, alleging that Article 9(6) and (9) of the basic regulation is unlawful;

–order the Kingdom of Spain to pay the costs.

15The European Parliament contends that the Court should:

–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 Kingdom of Spain to pay the costs.

Law

16In support of its action, the Kingdom of Spain puts forward two pleas in law. The first plea alleges infringement of the basic regulation and of the principle of proportionality by the contested regulation, in so far as it establishes the list of areas where VMEs are known to occur or are likely to occur.

17By the second plea, the Kingdom of Spain alleges, in the alternative, that Article 9(6) and (9) of the basic regulation is unlawful.

The first plea in law, alleging infringement of the basic regulation and of the principle of proportionality in so far as the contested regulation establishes the areas where VMEs are known to occur or are likely to occur

18This plea in law consists of two parts, alleging that the Commission infringed the basic regulation and the principle of proportionality, on the one hand, in failing to analyse the impact of deep-sea passive fishing gears and, on the other hand, by the method thus used.

The first part, alleging infringement of the basic regulation and of the principle of proportionality on account of the failure to analyse the impact of deep-sea passive fishing gears

19The Kingdom of Spain claims that Article 2(1) of the contested regulation infringes the provisions of the basic regulation and the principle of proportionality in that it establishes a list of areas where VMEs are known to occur or are likely to occur, without relying on an analysis of the impact of passive fishing gears. In that regard, the Kingdom of Spain emphasises that the objective of the basic regulation and, to that end, of the list of those areas is, according to Article 1 of that regulation, to prevent ‘significant’ adverse impacts on VMEs in the context of deep-sea fishing and to ensure the long-term conservation of deep-sea fish stocks. Such an approach is also reflected in the various international instruments to which the basic regulation refers, such as United Nations General Assembly Resolutions 61/105 and 64/72 and the International Guidelines for the Management of Deep-sea Fisheries in the High Seas of the Food and Agriculture Organisation of the United Nations (FAO) of 29 August 2008 (‘the 2008 FAO Guidelines’). The Kingdom of Spain submits that the Commission determined, in that implementing regulation, areas where VMEs are known to occur or are likely to occur on the basis of the 2021 ICES advice, which used a weighted methodology based on the assessment of several possible approaches to fisheries management, but which failed to assess the impact of a fundamental part of fishing activity, namely that using passive gears. That methodology is consistent neither with the basic regulation nor with the principle of proportionality, in the light of the CFP pillars concerning economic, social and employment benefits.

20The Commission, supported by the Council and the Parliament, disputes the Kingdom of Spain’s claims.

21As regards the complaint that the basic regulation has been infringed, it should be noted that the question raised concerns the interpretation of Article 9(6) of that regulation, in particular for the purpose of determining whether it is necessary to examine, in the context of the adoption by the Commission of a regulation establishing the list of areas where VMEs are known to occur or are likely to occur, the significant adverse impacts of passive gears in each area included in that list, in the context of a fisheries management approach which includes an assessment of the consequences of measures to protect VMEs on fishing activities and on economic and social life.

22In the light of the abovementioned claims of the Kingdom of Spain (see paragraph 19 above), it is necessary to interpret Article 9(6) of the basic regulation 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 that provision requires an assessment of the adverse impacts of fishing with passive gears in the areas concerned.

23In the first place, it should be noted that that interpretation must be carried out in the light of certain definitions which flow directly from Article 4 of the basic 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).

24In 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 relating to the nature and quantity of species ‘encountered’ by both mobile and passive gears. Those elements are relevant and important not only in the event of a chance encounter with VMEs, in accordance with 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 the provisions of Article 9(4) and (6) of that regulation, as will be analysed below (see paragraphs 36 to 44 below).

25On 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.

26First, 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, dredges, bottom-set gill nets, bottom-set longlines, pots and traps’). It clearly follows that ‘bottom gears’, within the meaning of the above definition, include passive bottom gears, including longlines.

27Secondly, 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 that regulation, according to which ‘bottom gears’ are ‘gears deployed in the normal course of fishing operations in contact with the seabed’.

28Thirdly, 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 28 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.

30It must be concluded that, contrary to the Kingdom of Spain’s claims, 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.

31In the second place, in so far as the Kingdom of Spain points out 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, it should be noted that the factors which should be used as criteria for identifying VMEs are set out in paragraphs 14, 15 and 42 of those guidelines.

32Those 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 that habitat’s component species that make recovery difficult [iv];

–structural complexity [v].

33It 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, that 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.

34Moreover, 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.

35Consequently, the 2008 FAO Guidelines do not provide any guidance on interpretation which could support the argument put forward by the Kingdom of Spain concerning the need to assess the possible impact of any type of fishing and the gears to be used.

36In the third place, a teleological and systemic analysis of Article 9(6) of the basic regulation should be carried out.

37First, 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.

38Secondly, 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.

39In 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’.

40Similarly, 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, contrary to what the Kingdom of Spain maintains, it cannot be inferred from that provision that a management approach, which includes the requirement to assess the consequences of VME conservation measures on fishing activities and on economic and social life (see paragraph 19 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.

41Thirdly, such an approach, advocated by the Kingdom of Spain, 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.

42That 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.

43Moreover, the Kingdom of Spain also relies on Article 9(8) of the basic regulation, according to which ‘new impact assessments shall be required if there are significant changes to the techniques used for carrying out fisheries with bottom gear, or where there is new scientific information indicating the presence of VMEs in a given area’. It argues that if the various techniques used for fishing with bottom gears are an important element in reviewing the list of areas where VMEs are known to occur or are likely to occur, they must necessarily be an important element in drawing up that list. However, that argument must be rejected. Article 9(8) of the basic regulation requires new ‘impact assessments’, although such assessments are required not for the establishment of those areas pursuant to the first sentence of Article 9(6) of that regulation, but rather for the removal of an area from the list, pursuant to the second sentence of that provision, which lays down procedural and substantive conditions.

44It follows from all those considerations, set out in paragraphs 19 to 43 above, that, contrary to what the Kingdom of Spain claims, the first sentence of 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 fisheries management approach or a management approach which includes an assessment of the consequences of the relevant VME protection measures on fishing activities and on economic and social life.

45As regards the complaint alleging infringement of the principle of proportionality, which is referred to in Regulation No 1380/2013 (see paragraph 42 above), itself referred to in the basic regulation, it should be recalled that, according to settled case-law, the principle of proportionality 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).

46It 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).

47In the present case, in so far as the Kingdom of Spain focuses its arguments on whether the ‘negative impacts’ on the marine environment of the various types of fishing gears, in particular passive gears, were ‘significant’ or even ‘considerable’, and compromise the integrity of the ecosystem (see, also, paragraph 19 above), which would exclude consideration of those latter gears, and as regards its claim put forward in the reply that it was not reasonable to accept the premiss that the vulnerability of ecosystems was an objective issue inherent in them, which depended solely on the ecosystem and its characteristics, it has already been observed in paragraph 33 above that it was appropriate, when drawing up a list of areas where VMEs are known to occur or are likely to occur, to rely on the characteristics of the ecosystems themselves, including their fragility, taking into account the risk of damage associated with the significant adverse impacts resulting, in general, from the use of ‘bottom gears’. Accordingly, nor does the absence of analysis by ICES and the Commission of the detrimental impacts of passive gears on the areas included in that list set out in Annex II to the contested regulation constitute a breach of the principle of proportionality.

48For the reasons set out in paragraphs 21 to 47 above, the Kingdom of Spain is not justified in arguing that, in the light of the CFP and the principle of proportionality, it was not appropriate to develop one pillar, relating to the environment, without taking into consideration the other two, namely the economic and social pillars. In particular, it should again be pointed out that the Commission, in establishing the list of areas where VMEs are known to occur or are likely to occur 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 (see paragraph 41 above). Nor can the Court accept the Kingdom of Spain’s claim that ‘the prohibition on fishing with passive gears laid down in the [contested] implementing regulation is not justified by the objective of protecting VMEs, since the major negative impact has not been demonstrated’ and it is ‘disproportionate to that objective and to the other aims of the CFP, thus preventing a substantial part of the fishing fleet … from contributing to economic wealth and to the availability of food supplies’.

49In that regard, it must be added that, contrary to what the Kingdom of Spain argues, 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 regulation, is not based on that balancing of the protection of VMEs and other objectives of the CFP or on a fisheries management approach.

50Indeed, it is clear from that ICES advice that its database contains two types of data, namely, on the one hand, those which confirm the presence of VMEs, recorded as VME habitats, and, on the other hand, those which do not provide the same certainty as to the presence of VMEs, because VMEs have not been directly observed on the seabed, but have often been remotely sampled. For those records, ICES developed a method to combine individual records within a specific marine area (a ‘C‑square’), based on FAO criteria and any available abundance data, into a ‘VME index’ with high, medium and low likelihood of a ‘C‑square’ containing an actual VME habitat.

51On that basis, the 2021 ICES advice identifies several ‘management approaches’ linked to the establishing of the list of areas where VMEs are known to occur or are likely to occur.

52In accordance with the United Nations General Assembly resolutions and the 2008 FAO Guidelines, ICES developed two scenarios, each with two options. 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.

53It 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 ‘swept-area ratio’ (‘SAR’) thresholds, 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 44 above, such an approach is compatible with Article 9(6) of the basic regulation.

54Even 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 32 above and in the first column of Table 1, on page 6 of that advice.

55Moreover, as regards the method used by ICES, it should be added that it is clear from its advice of 2021 that ICES expressly stated that it was able to take account of fishing intensity only in relation to mobile gears, as these were the only gears for which it had the relevant information (namely data on fishing intensity), even though it was expressly noted that such information was lacking in relation to passive gears. However, the Kingdom of Spain does not dispute, in a clear and precise manner, the absence of sufficiently precise information on the intensity of fishing by passive gears in the marine environment concerned.

56As regards the Kingdom of Spain’s argument that, in essence, ICES took the decision not to include certain areas around the Azores (Portugal) in its 2021 advice concerning the establishment of the list of areas where VMEs are known to occur or are likely to occur, even though these were precisely the areas in which fishing was mainly carried out with passive gears, it is sufficient to point out that, on the one hand, it was the absence of sufficient information to predict the proven or probable existence of those areas which was relevant and, on the other hand, as the Commission stated before the Court without that fact being contested, an additional analysis was requested from ICES, in that geographical area, so that a list of areas where VMEs are known to occur or are likely to occur covering that area could be prepared in future. Accordingly, the non-inclusion of that area in the list of relevant areas in Annex II to the contested regulation is not capable of demonstrating any infringement of the principle of proportionality.

57Finally, as regards the Kingdom of Spain’s argument that, in essence, the Commission had alternatives other than that which it finally adopted, on the actual basis of the 2021 ICES advice, which expressly provided for ‘the possibility of combining different scenarios in various areas according to their different characteristics, in particular data relating to fishing activities’, and the Kingdom of Spain’s proposal for a choice of ‘a scenario and an option allowing areas with low indicators of VME presence and of fishing activity with passive gears not to be closed’, in line with the objectives of the CFP and the principle of proportionality, it should be noted that the option thus advocated by the Kingdom of Spain is based on a fisheries management approach and not on that of designating areas where VMEs are known to occur or are likely to occur in the light of their inherent characteristics. Moreover, the Kingdom of Spain does not establish that the methodology followed was inappropriate, that it was not such as to contribute to the objective pursued (within the meaning of the case-law referred to in paragraph 46 above) or that another methodology would have been more effective for the delimitation of those areas.

In the light of the foregoing, the Court rejects as unfounded the first part of the first plea in law, alleging infringement of the basic regulation and of the principle of proportionality on account of the failure to analyse the impact of deep-sea passive fishing gears.

The second part of the first plea in law, alleging infringement of the basic regulation and of the principle of proportionality by the method used to determine the areas where VMEs are known to occur or are likely to occur

59The Kingdom of Spain’s claims in this part of the first plea in law can be divided into four complaints. In the first place, according to the Kingdom of Spain, some of the areas where VMEs are known to occur or are likely to occur, designated by the Commission in the contested regulation, are located at a depth of less than 400 metres, which is contrary to the basic regulation. In the second place, the Kingdom of Spain criticises the methodology used in the 2021 ICES advice, based on the ‘C‑square’ unit. In the third place, the Kingdom of Spain contests the establishment of ‘buffer zones’, consisting, in essence, of the addition of ‘half of a C‑square’ to the ‘C‑squares’ identified as containing VMEs. In the fourth place, the Kingdom of Spain criticises the closure to fishing of areas, allegedly without the presence of VMEs, enclosed between ‘C‑squares’ identified as containing VMEs.

–The first complaint, concerning areas where VMEs are known to occur or are likely to occur at a depth of less than 400 metres

60The Kingdom of Spain points out that Article 2 of the contested regulation establishes, by reference to Annex II to that regulation, the list of areas where VMEs are known to occur or are likely to occur, in accordance with Article 9 of the basic regulation. Article 9(1) of the basic regulation is to apply to fishing operations with bottom gears below a depth of 400 metres. Moreover, Article 9(9) of that regulation provides that fishing with bottom gears is to be prohibited in all areas listed in accordance with paragraph 6 of that article. Nevertheless, according to the Kingdom of Spain, the contested regulation appears to provide for a general prohibition on fishing with bottom gears in the areas referred to in the list, irrespective of whether the depth is below 400 metres. In fact, certain areas, including areas 4, 6, 17, 23, 31, 35, 39, 40, 48 and 78, included in Annex II to that implementing regulation, are located at a depth of less than 400 metres. Accordingly, Article 9 of the basic regulation and, in particular, the prohibition on fishing with bottom gears provided for in paragraph 9 thereof should not apply to them. The inclusion of those areas in the list goes beyond what is permitted by the basic regulation, which requires compliance with Article 9 thereof, in its entirety, solely with respect to areas below a depth of 400 metres.

61The Commission disputes that line of argument.

62In that regard, it should be recalled that, while the wording of Article 9(6) of the basic regulation does not contain any limiting reference as to the depth of the areas included in the list of areas where VMEs are known to occur or are likely to occur, Article 9(1) of the basic regulation provides that it is to apply to fishing operations with bottom gears below a depth of 400 metres. Article 9(2) of that regulation concerns the same category of fishing operations and sets out the data to be taken into consideration for the assessment and identification of VMEs. It can be inferred from this that the areas referred to in Article 9(6) of that regulation must be at least partly below a depth of 400 metres, as the Commission itself acknowledges.

63Indeed, in response to the questions put by the Court by way of measures of organisation of the procedure, the Commission stated that all the areas where VMEs are known to occur or are likely to occur, as delimited in Annex II to the contested regulation, including those highlighted by the Kingdom of Spain, were at least in part below a depth of 400 metres. None of them was, in its entirety, at a depth of 400 metres or less. The Commission attached to its response a table showing the minimum and maximum depths of each of the areas listed in Annex II to the contested regulation in accordance with data from the European Marine Observation and Data Network (‘the EMODnet’), which were also available to Member States.

64Moreover, as is apparent from recital 6 of the contested regulation, the 2021 ICES advice was intended to list VMEs ‘with high, medium and low presence index in C‑squares at a depth range between 400 and 800 metres’. The 2021 ICES advice explains why, in some cases, parts of the ‘C‑squares’ could be located outside the depth range of 400 to 800 metres.

65Furthermore, the Commission maintained that, although the areas where VMEs are known to occur or are likely to occur, listed in Annex II to the contested regulation, included all those in which the presence of VMEs was probable or proven, the prohibition on fishing applied only at a depth exceeding 400 metres, in accordance with the provisions of Article 9(1) and (9) of the basic regulation. At the hearing, the Commission also confirmed that the same logic applied both to the ‘C‑squares’ and to the buffer zones.

66It is clear from the data and information provided by the Commission that, while the depth of the areas designated as areas where VMEs are known to occur or are likely to occur could vary, so that part of those areas might even lie outside the 400 to 800 metre limit, none of the areas in question was, in its entirety, located at a depth of between 0 and 400 metres. The above data provided by the Commission have not been disputed specifically and in detail by the Kingdom of Spain. Consequently, it has not been established that the depth criterion laid down in Article 9(1) of the basic regulation (see paragraph 62 above) was disregarded in the present case.

67In those circumstances, the Kingdom of Spain’s first complaint, in so far as it relates to the Commission’s alleged inclusion in the list at issue (in accordance with the coordinates set out in Annex II to the contested regulation) of areas located entirely outside a depth range of between 400 and 800 metres, must be rejected.

–The second complaint, concerning the methodology used in the 2021 ICES advice, based on the ‘C‑square’ unit

68The Kingdom of Spain criticises the 2021 ICES advice in that it uses a methodology endorsed, in essence, by the contested regulation, based on the ‘C‑square’ unit, of 0.05 degrees, creating, in its view, cells of 15 to 25 square kilometres, depending on latitude. In essence, as ICES acknowledges, that system presupposes that cells are not uniform according to latitude. Moreover, that methodology closes excessively large areas around the areas where VMEs have been detected, in particular narrow continental shelf areas, such as in northern Spain, in contrast to very large areas, such as the continental shelf of the North Sea. In using that methodology, points of VME presence, identified by video or photography (in the case of habitats) or by other techniques such as trawling (in the case of physical VME indicators), are combined with the grid of ‘C‑square’ cells to establish closure areas. All of the foregoing means that the same ‘C‑square’ could take into account various VME indicators, fishing zones and bathymetric data. That lack of definition weakens any type of analysis. The 2021 ICES advice itself acknowledges that that methodology places important limitations on the potential consequence of lower scale separation between VME occurrence and overlap with fishing activity.

69The Kingdom of Spain maintains that the basic regulation requires the list drawn up by the Commission for the purposes of Article 9 thereof to be limited to areas where VMEs are known to occur or are likely to occur, while outside such areas fishing is permitted subject to authorisation. There is no justification for the indiscriminate closure of adjacent areas in which such ecosystems have not been identified, on the basis of an imprecise methodology which does not take into account the best available scientific and technical information. According to the Kingdom of Spain, more precise information existed and was made available to ICES for the preparation of its advice.

70The Commission disputes the Kingdom of Spain’s claims.

71As a preliminary point, it should be noted that the contested regulation is based on the 2021 ICES advice, which states that:

‘C‑square is a grid system. ICES uses a C‑square resolution of 0.05° longitude by 0.05° latitude (about 15 km² (3 km × 5 km) at a latitude of 60°N). This resolution is a practical scale to collate, explore, and assess data relating to fishing activities in the marine environment.’

72It should also be noted that Article 9 of the basic regulation (including the 2008 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. These elements must therefore be regarded as falling within the discretion enjoyed by the Commission as regards the application of the criteria for establishing the list of those areas (see paragraph 42 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).

73It is in the light of those considerations that the Kingdom of Spain’s arguments must be examined.

74First, 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 (see paragraph 71 above). In that context, it referred to the modelled EMODnet bathymetry data and the work of the Northwest Atlantic Fisheries Organisation (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’.

75Secondly, it is true that the Kingdom of Spain argues that it had more precise information at its disposal, mainly from the Indemares and Intemares projects, from knowledge of the marine environment for the management of areas in the Natura 2000 network co-financed by the European Union, and from research campaigns designed to respond to marine strategies. According to the Kingdom of Spain, that precise geo-referenced information was communicated to EMODnet, which provided access to European marine data categorised into seven disciplines (bathymetry, biology, chemistry, geology, human activities, physics and seabed habitats) and to the OSPAR database, a mechanism by which 15 governments and the European Union cooperate to protect the marine environment of the North-East Atlantic. According to the Kingdom of Spain, the Commission also recognised that the method based on ‘C‑squares’ was not the most accurate and provided no response concerning the difference in cell size resulting from latitude, to the detriment of the Kingdom of Spain. Finally, according to the Kingdom of Spain, the Commission’s claims concerning the allegedly belated communication of data by the Member States to ICES were irrelevant. The unilateral decision by ICES to base its advice exclusively on its own VME database, disregarding the data produced by the Member States through various EU data exchange networks and infrastructures, constitutes, according to the Kingdom of Spain, a further restriction on the use of the best available scientific and technical information.

76However, 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 (see paragraphs 69 and 75, in fine, above). 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 that established by the basic regulation. Moreover, the Kingdom of Spain does not provide an effective and realistic alternative, in the light of the need to harmonise Member States’ approaches and implement Article 9(6) of the basic regulation in a uniform manner.

77Nor is it apparent from the methods proposed by the Kingdom of Spain (see paragraph 75 above) that they 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 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 their methodology manifestly inappropriate on the basis of information provided by the Kingdom of Spain or owing to the possibility of using other methods, such as the ‘Kernel method’ referred to at the hearing 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. Moreover, it should be noted that, contrary to what the Kingdom of Spain maintains (see paragraph 75 above), ICES based its 2021 advice, inter alia, on bathymetry data specifically derived from the EMODnet database, put forward by the Kingdom of Spain. Furthermore, as the Commission stated at the hearing, without being contradicted by 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.

78Accordingly, the Kingdom of Spain’s second complaint, criticising the methodology used in the 2021 ICES advice based on the ‘C‑square’ unit, must be rejected as unfounded.

–The third complaint, relating to the establishment of buffer zones by adding ‘half of a C‑square’ to the ‘C‑squares’

79According to the Kingdom of Spain, the ‘C‑squares’ identifying the presence of VMEs are supplemented by contiguous buffer zones corresponding to ‘half of a C‑square’, in order to ensure the protection of habitats located within the limit of that ‘C‑square’. In its view, that buffer distance exceeds that recommended in other previous advice, which ranged from two to three times the depth of the zone concerned. According to the Kingdom of Spain, those closures are based on considerations clearly associated with mobile fishing gears. The result is a list of areas leading, in practice, to far more extensive closures than required by the basic regulation, which infringes its provisions and the principle of proportionality. The basic regulation allows the closure only of areas where VMEs are known to occur or are likely to occur, taking into account the significant adverse impact which fishing activities could have on those ecosystems. Moreover, the closure of buffer zones of ‘half of a C‑square’ around each ‘C‑square’ undermines the objective of maintaining sustainable fishing activity and achieving economic and social benefits, as well as the objective of contributing to the availability of food supplies at reasonable prices.

80The Commission disputes the Kingdom of Spain’s claims.

81As 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) that 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 is advised. Given the complexity of applying that advice in the current advice, ICES opted for a half C‑square buffer around each C‑square.’

82In the present case, 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. In the light of the relevant explanations contained in the 2021 ICES advice, the establishment of those buffer zones is intended to guarantee, in accordance with the precautionary principle, the protection of VME habitats which may be adjacent to 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).

83Consequently, although those buffer zones do not contain VME indicators and are therefore not areas where VMEs are likely to occur, according to the data available to ICES and the Commission, 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. Accordingly, the Kingdom of Spain’s 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 regulation, infringes Article 9(6) of the basic regulation cannot succeed.

Moreover, 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 it concerns mobile gears rather than passive gears is not such as to exclude or limit the possibility for the Commission to establish such zones. In any event, as is clear from paragraphs 135 and 138 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.

85With regard to the Kingdom of Spain’s complaint, referred to in paragraph 79 above, that the principle of proportionality has been infringed (see also paragraphs 45 and 46 above), on account of the extent of the buffer zones, it should be noted, in the first place, that those zones are appropriate for attaining the legitimate objective pursued by the legislation concerned, which is linked to prevention of the risk associated with fishing with bottom gears, as recalled in paragraph 82 above.

86In the second place, as regards the disproportionate nature of those zones in relation to the abovementioned objective, in view of the essentially technical nature of that element of the methodology followed by the Commission, the Court’s review is confined, in accordance with the case-law referred to in paragraph 72 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 associated with fishing with bottom gears in general. However, the Kingdom of Spain has not demonstrated that the size of the zones in question is manifestly disproportionate. In that regard, the only specific argument put forward by the Kingdom of Spain is based on differences between the consecutive advice issued by ICES as to the extent of buffer zones. That argument must be rejected as unfounded. Those differences appear to be linked to an alternative method of calculation used as the basis for delimiting buffer zones. In particular, as is also apparent from the 2021 ICES advice (see paragraph 81 above), whereas previously the issue was dealt with on the basis of the depth of the areas where VMEs are known to occur or are likely to occur (2013 ICES advice ), subsequently the buffer zone was delimited by reference to an additional ‘half of a C‑square’ primarily for the ease and therefore effectiveness of implementation of that measure. In any event, modification of an element of the methodology proposed in the ICES advice is not in itself capable of demonstrating that the measure in question manifestly goes beyond what is necessary to achieve it.

87In those circumstances, the Kingdom of Spain has not provided sufficient 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, infringed the principle of proportionality.

88The Kingdom of Spain’s third complaint, relating to the establishment of buffer zones by adding ‘half of a C‑square’ to the ‘C‑squares’, must therefore be rejected as unfounded.

–The fourth complaint, relating to the closure of areas allegedly free of VMEs between ‘C‑squares’ identified as containing areas where VMEs are known to occur or are likely to occur

89In addition to the elements which it criticises in its first three complaints, the Kingdom of Spain criticises the closure of areas ‘of less than three C‑squares’ without the presence of VMEs, enclosed within closed areas, on the ground that open areas ‘of less than three C‑squares “are not practical”’. In addition to relying, by analogy, on the arguments set out in paragraph 79 above, the Kingdom of Spain argues in particular that those closures are based on considerations clearly associated with mobile fishing gears.

90The Commission disputes the Kingdom of Spain’s claims.

91Accordingly, on the one hand, 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 those zones.

92On the other hand, in its 2021 advice, ICES also noted 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 42 above).

93In view of the foregoing, it has not been established that the Commission infringed Article 9(6) of the basic regulation or the principle of proportionality by including the abovementioned areas in Annex II to the contested regulation. In those circumstances, the Kingdom of Spain’s fourth complaint must be rejected.

94It follows from the foregoing that the second part of the first plea in law and, consequently, that plea in law as a whole must also be rejected.

The second plea in law, raising an objection of illegality in respect of Article 9(6) and (9) of the basic regulation

Preliminary remarks on the objection of illegality

95In its second plea in law, the Kingdom of Spain raises 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 alleges infringement of Article 291 TFEU in that Article 9(6) of the basic regulation refers to an implementing act in order to supplement the essential elements provided for therein. The second part alleges infringement of the rules of the CFP and of the principle of proportionality by indiscriminately prohibiting fishing with bottom gears in the areas determined by Article 9(9) of that regulation.

96There is a connecting factor between the contested regulation and the rules the illegality of which is pleaded. On the one hand, the Commission adopted that implementing regulation in order to implement the provisions of Article 9 of the basic regulation and, 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.

97The 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 in respect of 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.

98It is clear from the case-law that, since 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 (see, to that effect, judgment of 13 July 1966, Italy v Council and Commission, 32/65, EU:C:1966:42, p. 594; 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).

99Moreover, 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).

100In 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 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 98 and 99 above.

101By 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.

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

102First, according to the Kingdom of Spain, the basic regulation is internally inconsistent. Article 17(2), (3) and (6) of that regulation repeatedly makes reference to the ‘delegated acts’ referred to in Article 9(6) of that regulation. However, it is apparent from recitals 13 and 14 of the basic regulation that it purports to delegate powers to the Commission, in accordance with Article 290 TFEU, to amend the list of VME indicators set out in Annex III, to which Article 9(7) of the basic regulation refers. Article 17 of that regulation refers to Article 9(7), not Article 9(6), of that regulation. However, in the absence of amendment or rectification, in order to adopt any of the acts referred to in Article 9(6) of the basic regulation, the Commission should have submitted that act to the objection procedure of the Parliament and the Council, which it did not do.

103Secondly, even accepting that the basic regulation refers to an implementing act, the Kingdom of Spain argues that that conferral of powers infringes Article 291(2) TFEU, which limits implementing acts to cases in which uniform conditions for implementing legally binding EU acts are required. In particular, concerning the CFP, the decision to protect VMEs from various fishing activities on the basis of the desired level of conservation and according to a weighing up of the interests representing the primary objective of the CFP, namely sustainable fishing activity within the European Union, is a fundamental policy decision. According to the Kingdom of Spain, in the present case, in order to determine the areas where VMEs are known to occur or are likely to occur, the Commission chose one of the various scenarios proposed in the 2021 ICES advice, by means, specifically, of weighing up the different levels of protection of ecosystems and the concomitant allocation of fishing activities without, however, taking into account the various fishing gears which exist. Moreover, the Commission adopted certain decisions concerning the establishment of the list of those areas which demonstrate the exercise of discretionary powers going beyond the exercise of powers provided for by Article 9(6) of the basic regulation, in particular by excluding the areas surrounding the Azores, as well as certain other areas where VMEs may occur. Article 9(6) of the basic regulation therefore unlawfully confers powers on the Commission to determine an essential element of the protection regimes for VMEs.

104The Commission, supported by the Council and the Parliament, disputes the Kingdom of Spain’s claims.

105In that regard, in the first place, in the light of the clear wording of Article 9(6) of the basic regulation, which refers to an implementing act, and in the light of recitals 13 and 14 of that regulation, the reference made by the Kingdom of Spain to Article 17 of that regulation, concerning the adoption of delegated acts by the Commission, and to its wording (see paragraph 102 above) cannot lead to a finding of internal inconsistency in the basic regulation or, consequently, to a finding that the objection of illegality is well-founded. Moreover, the latter article has, in the meantime, been rectified, in order to replace the initially erroneous reference to Article 9(6) of the basic regulation with a reference to Article 9(7) of that regulation (Corrigendum to Regulation 2016/2336 (OJ 2023 L 39, p. 63)).

106In the second place, as 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).

107Moreover, 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).

108The 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).

109In 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).

110In analysing the objection of illegality directed against 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.

111In 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 its essential or even non-essential elements, in breach of Article 291 TFEU, as the Kingdom of Spain maintains.

112As 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. As the Council rightly submits, 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.

113The 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 for applying 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).

114Moreover, contrary to the Kingdom of Spain’s claims that, in essence, the Commission made, in the present case, political and economic choices, because of the conferral of powers infringing Article 291 TFEU (see arguments recalled in paragraph 103 above), and as already found in the context of the first plea, the Commission was not entitled to make such choices concerning the conservation of marine ecosystems and resources (see paragraphs 37 to 44 above). Furthermore, in so far as the abovementioned claims of the Kingdom of Spain relate to the action actually taken by the Commission when adopting the contested regulation, they are ineffective in the context of the objection of illegality concerning the basic regulation.

115More generally, as regards the arguments put forward by the Kingdom of Spain concerning the powers to manage fisheries policy which are alleged to have been conferred on the Commission (see paragraph 103 above), it has already been pointed out, in the context of the first plea, that the Commission was acting within the framework of its powers to implement and not to manage fisheries policy (see, in particular, paragraphs 42 and 44 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 is consistent with the objective of taking into account the realities of the seabed and marine environments, as shown by the available data (see paragraph 112 above).

In those circumstances, the first part of the second plea in law, alleging infringement of Article 291 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.

The second part of the second plea in law, alleging infringement of the rules of the CFP and of the principle of proportionality on account of the indiscriminate prohibition on fishing with bottom gears in all the areas where VMEs are known to occur or are likely to occur, as well as the inadequate statement of reasons in that regard

117In the second part of the second plea in law, the Kingdom of Spain submits, in essence, that the indiscriminate prohibition introduced by Article 9(9) of the basic regulation is incompatible with the CFP rules and the principle of proportionality, because the legislature adopted it without drawing a distinction between fishing gears on the basis of their impact, by weighing up the various objectives of the CFP, set out in Article 2 of Regulation No 1380/2013. Such a claim 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. According to the Kingdom of Spain, the abovementioned provision of the basic regulation imposes a prohibition without any advance knowledge of its practical implementation in the marine environment, associated with its economic and social impact.

118In that regard, the Kingdom of Spain argues that the closure of fishing areas in which passive gears have been used historically has substantial social and economic consequences for the coastal populations of those areas, the development of which is based on small-scale, sustainable fishing. However, the sector has not had the opportunity to produce its impact assessment and impact data, including the relocation of the fleet to other areas where there is already fishing activity, due to the absence of any consultation to that end. According to the Kingdom of Spain, as regards the Commission’s estimate that the effect of the contested regulation is limited to 17% of the waters to which it applied, such a closure of fishing areas could have a significant real effect, if the areas closed were those with catches of high economic value, which was not properly assessed by the Commission.

119The Kingdom of Spain therefore submits that Article 9(9) of the basic regulation, which was implemented by the contested regulation, must be declared contrary to the rules of the CFP and the principle of proportionality.

120The Commission, supported by the Council and the Parliament, disputes the Kingdom of Spain’s claims.

121In 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.

122In 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.

…

…’

123Article 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;

…’

124Article 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.’

125Pursuant 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.

(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;

…’

126In 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 measure in question 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).

127More 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 Kingdom of Spain seems to claim, in emphasising that the legislature has drawn no distinction between fishing gears according to their impact (see paragraph 117 above), that the legislature has failed to fulfil its obligation to state reasons for the choice of the measure in question, by specifically assessing 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.

128On 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.

129On 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 126 and 127 above are applicable.

130However, the Kingdom of Spain has failed to demonstrate that the legislature has clearly exceeded the bounds of its discretion in adopting the prohibition provided for in Article 9(9) of the basic regulation.

131First, 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.

132Secondly, 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 25 to 29 above). The Kingdom of Spain does 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).

133Thirdly, it should be noted that the Kingdom of Spain has not provided any evidence to call into question the possibility that passive gears may also pose risks of adverse impacts on VMEs, particularly during their repeated deployment and retrieval. The possible existence of such risks is, moreover, referred to in the document entitled ‘Workshop on deep sea stocks management’, dated 7 December 2007, from the Parliament’s Policy Department for Structural and Cohesion Policies, to which the Parliament refers in its written pleadings and 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). The Kingdom of Spain argues, rather, that those effects are much less significant than those of mobile gears, although none of the evidence which it adduces before the Court demonstrates a complete absence of adverse impacts of passive gears (see paragraph 138 below).

134Accordingly, in particular, 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, covered by Annex 5 to the request, 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.

135Similar indications of possible negative impacts associated with passive gears are to be found in other evidence, such as the article by Parker, S.J., ‘Identifying taxonomic groups vulnerable to bottom longline fishing gear in the Ross Sea region’, CCAMLR Science, Vol. 17, 2010, pp. 105 to 127, or 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, 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’.

136Finally, similar elements emerge from presentations made at a hearing on deep-sea fishing held before the Parliament on 17 June 2013, to which the Parliament refers in its written pleadings. As indicated therein, Ms L.D., from the Fisheries Ecosystems Advisory Services (Marine Institute), concluded her presentation by stating that bottom longlines could also have an impact on VMEs. An identical conclusion was reached in the presentation by Morato, T., and Pham, Ch. K., entitled ‘The impact of deep-water longline on epibenthic invertebrates’, produced by the Parliament.

137Moreover, 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 Kingdom of Spain. That approach enables VMEs to be protected in a manner which is compatible with the precautionary principle and the ecosystem-based approach to fisheries management, which form an integral part of the CFP under Article 2 of Regulation No 1380/2013.

138Accordingly, the Kingdom of Spain has 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 approach and in accordance with the precautionary principle, to exclude the risk, established to the requisite legal standard by the elements set out in paragraphs 134 to 137 above, that those fishing gears pose in relation to VMEs. Nor can the references made at the hearing to the fact that passive gears, and in particular longlines, are fixed and fitted with geolocation devices be considered conclusive in that regard. As noted in paragraphs 135 and 136 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 paragraphs 133 and 134 above).

139In the light of the foregoing, the EU legislature, exercising its broad 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, notwithstanding the likely adverse 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 127 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 the objective of 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.

140It 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 prepared by the Commission on the basis of several options emerging from its initial proposal, one of which corresponded to that finally adopted by it. All those factors were taken into consideration by the legislature in exercising its discretion when adopting the conservation measures.

141Fourthly, 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.

142It must be concluded that the Kingdom of Spain has not adduced any evidence to show that the legislature infringed the principle of proportionality, the rules of the CFP or any alleged obligation to state reasons specific to the choices made, in prohibiting fishing with passive bottom gears, below a depth of 400 metres, in areas identified as areas 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.

143In those circumstances, without it being necessary to examine its admissibility, the second part of the second plea and, therefore, the second plea in law, must be rejected. Consequently, the action must be dismissed in its entirety.

Costs

144Under 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 Kingdom of Spain has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

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

On those grounds,

hereby:

1.Dismisses the action;

2.Orders the Kingdom of Spain to bear its own costs and to pay those incurred by the European Commission;

3.Orders the European Parliament and the Council of the European Union to bear their own costs.

Papasavvas

Kowalik-Bańczyk

Buttigieg

Dimitrakopoulos

Ricziová

Delivered in open court in Luxembourg on 11 June 2025.

[Signatures]

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Language of the case: Spanish.