The applicant requested the German Federal Office for Nature Protection (Federal Office) to prohibit certain harmful fishing methods which damaged natural habitats in several protected natural sites in the German exclusive economic zones (EEZs) in the North and Baltic Seas. The applicant argued that such fishing methods were incompatible with art 6(2) of Council Directive 92/43/EEC requiring member states to take appropriate steps to avoid deterioration of natural habitats in special areas. The Federal Office rejected the application and dismissed the applicant’s appeal on the basis that it lacked power to adopt these measures. Such measures should be instead adopted by EU institutions pursuant to arts 11 and 18 of Parliament and Council Regulation (EU) No 1380/2013 on the Common Fisheries Policy (Regulation) insofar as they affected vessels of other member states in the EEZs. Under art 11.1, member states were able to adopt conservation measures, which were necessary to comply with their obligations under art 6 of Directive 92/43, that did not affect fishing vessels of other member states. The applicant appealed against the Federal Office’s decision before the administrative court in Cologne, which stayed the proceedings and referred them to the Court of Justice of the European Union for a preliminary ruling.

Held: The measures requested by the applicant constituted ‘conservation measures’ within the meaning of art 11(1) of the Regulation. The fact that measures also affected other species was not enough to exclude them from the Regulation’s scope, and article 11 did not contain any exclusion on their adoption. Further, these measures encouraged the maintenance of natural habitats and were therefore covered by art 11(1).

However, arts 91.1 and 94.1 of UNCLOS provide that the EU is obliged to respect that ships have the nationality of the state whose flag they are entitled to fly and that every state is to effectively exercise its jurisdiction over ships flying its flag. Hence, the phrase ‘fishing vessels of other member states’ used in art 11(1) of the Regulation referred exclusively to ships flying the flag of a member state other than that exercising its jurisdiction over the area concerned and which are subject, on that basis, to the jurisdiction of the member state whose flag they fly. Accordingly, article 11(1) of the Regulation precluded a member state from unilaterally adopting such measures since they affected fishing vessels flying the flag of other member states.