Prohibition of Fishing in a Natural Resource Protection Area

 

In Decision No. U-I-195/16, dated 17 September 2020 (Official Gazette RS, No. 134/20), the Constitutional Court decided on the request of a fishing club for a review of the constitutionality and legality of the ordinance by which the local community protected the Tivoli, Rožnik, and Šišenski Hrib Landscape Park as a natural resource and determined the rules of conduct or the protection regime in the protected area. By the mentioned ordinance, it, inter alia, prohibited fishing in the protected area of the landscape park. The fishing club challenged the ordinance with the argument that such directly interferes with its legal position as it interferes with its rights acquired by the concession contract by which it acquired a concession for fisheries management in the protected area.

In the case at issue, the Constitutional Court had to review the mutual relationships between the measures for the protection of natural resources and the measures for fisheries management, as fish are a natural resource under special nature protection. The dispute between the fishing club and the local community concerned the question of whether the local community may prohibit fishing, in order to protect natural resources, without such prohibition being stipulated in advance in the fish-rearing plans, which determine the use of an individual fishing region. The Constitutional Court carried out the assessment of the challenged ordinance from the viewpoint of the third paragraph of Article 153 of the Constitution (the principle of the legality of local community regulations).

It stressed that fishing is one of the activities encompassed by fisheries management. The concessionaire does not carry out fishing in the public interest. Freshwater fishing entails the exploitation of a natural resource and is, as a general rule, intended for economic gain, therefore the concessionaire must pay a concession fee. The challenged ordinance is an act on the protection of a natural resource. The local community thereby prohibited fishing in the natural resource protection area. Fishing must therefore adapt to the protection regime of the natural resource that is in the public interest. The concrete concession relationship between the grantor of the concession and the concessionaire must adapt to such protection regime as well. The prohibition of fishing as a type of measure for the protection of natural resources thus entails a legal basis for adapting the management of fisheries and a legal basis for a potential change in the concession relationship between the state and providers of fisheries management. The Constitutional Court established that the challenged ordinance was not inconsistent with the Freshwater Fisheries Act and the third paragraph of Article 153 of the Constitution.

The fishing club further claimed that the challenged ordinance interfered with its acquired rights; therefore, the Constitutional Court had to assess whether the challenged regulation was consistent with the principle of trust in the law (Article 2 of the Constitution). The mentioned principle is binding also on local communities when they regulate issues falling within their competence. The Constitutional Court held that the adoption of the ordinance at issue interfered with the acquired rights of the fishing club. It deemed the protection of the natural resource to be a legitimate reason for determining the prohibition of fishing. The Constitutional Court took into consideration that there was no interference with other activities of the concessionaire carrying out fisheries management in the public interest, that the prohibition of fishing applies to only a small part of the area managed by the concessionaire, and that the concessionaire could have expected fishing in Tivoli Pond to be prohibited. It also took into consideration that the fishing club could have requested that the concession fee be reduced and that the concession contract be changed by an amendment as soon as the challenged ordinance entered into force. The fishing club also did not allege that the immediate prohibition of fishing in Tivoli Pond reduced the amount of expected revenue to such an extent that it was no longer able to carry out the tasks of fisheries management performed in the public interest. All of the above were the reason why the Constitutional Court gave priority in its assessment to the public interest and why it held that the challenged regulation was not inconsistent with the principle of the protection of trust in the law determined by Article 2 of the Constitution.