OPINION OF ADVOCATE GENERAL
delivered on 15 May 2014 (1)
Joined Cases C‑103/12 and C‑165/12
European Parliament (C‑103/12)
European Commission (C‑165/12)
Council of the European Union
(Council Decision 2012/19/EU — Choice of legal basis — Article 43(2) and (3) TFEU — Legal status of a Declaration made by the European Union and addressed to a third country)
1. For a long time, vessels flying the flag of the Bolivarian Republic of Venezuela (‘Venezuela’) have operated in the exclusive economic zone (‘EEZ’) (2) off the coast of French Guiana and thus in EU waters. The processing industry in French Guiana depends on those vessels’ landings. Whilst there had been negotiations in the 1990s, no formal international agreement between the European Union (‘the EU’) and Venezuela was in fact concluded even though EU law and international law appear to require some form of international title for this type of access. (3) The European Commission became concerned that the absence of such a title constituted a legal obstacle to the fixing and allocation of fishing opportunities for Venezuelan vessels (and thus also to the granting of individual fishing authorisations).
2. On 16 December 2011, the Council of the European Union, acting on a proposal prepared by the Commission which it modified and after seeking the opinion (but not the consent) of the European Parliament, adopted by Decision 2012/19 (‘the Decision’) (4) a declaration addressed to Venezuela on the granting of fishing opportunities in EU waters to Venezuelan fishing vessels (‘the Declaration’). The Declaration was notified by Note Verbale to Venezuela. The legal basis of the Decision is Article 43(3) TFEU in conjunction with Article 218(6)(b) TFEU. The Commission’s proposal had been based on Article 43 TFEU in conjunction with Article 218(6)(a) TFEU. (5) The Parliament (in Case C‑103/12) and the Commission (in Case C‑165/12) have lodged proceedings under Article 263 TFEU seeking annulment of the Decision. Essentially, they claim that the Decision has the wrong legal basis and that the Council did not respect the Parliament’s prerogatives. The Commission also submits that the Council failed to state reasons for the legal basis that it chose and distorted the Commission’s proposal.
Treaty on European Union
3. Pursuant to the second sentence of Article 3(5) TEU, the EU is to contribute to the strict observance and development of international law. Article 21(1) TEU further provides that the action of the EU on the international scene is to be guided by respect for the principles of international law.
4. Article 17(2) TEU provides:
‘Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide.’
5. Article 47 TEU states: ‘The Union shall have legal personality.’
Treaty on the Functioning of the European Union
6. Article 3(1)(d) TFEU describes ‘the conservation of marine biological resources under the common fisheries policy [“the CFP”]’ as an area of exclusive EU competence. According to Article 4(2) TFEU, the principal area of ‘agriculture and fisheries, excluding the conservation of marine biological resources’ is a shared competence between the EU and the Member States.
7. In accordance with Article 38(1) TFEU, the EU ‘define[s] and implement[s] a common agriculture and fisheries policy’. The same provision explains that references made to the ‘common agricultural policy’ (‘the CAP’), and to ‘agriculture’ and the use of the term ‘agricultural’ ‘must be understood as referring also to fisheries, having regard to the specific characteristics of this sector’.
8. Article 43(2) and (3) TFEU states: (6)
‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 40(1) [(7)] and the other provisions necessary for the pursuit of the objectives of the [CAP] and the [CFP].
3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.’
9. Article 218 TFEU sets out the procedure for negotiating and concluding international agreements:
‘1. Without prejudice to the specific provisions laid down in Article 207, [(8)] agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.
2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.
3. The Commission … shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.
4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.
5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.
6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.
… the Council shall adopt the decision concluding the agreement:
(a) after obtaining the consent of the European Parliament in the following cases:
(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.
The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.
(b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.
7. When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union’s behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation.
8. The Council shall act by a qualified majority throughout the procedure.
9. The Council, on a proposal from the Commission …, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.
10. The European Parliament shall be immediately and fully informed at all stages of the procedure.
11. A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.’
10. Where the Council acts on a proposal from the Commission, Article 293(1) TFEU states that the Council ‘may amend that proposal only by acting unanimously, except in the cases referred to in paragraphs 10 and 13 of Article 294, in Articles 310, 312 and 314 and in the second paragraph of Article 315’.
11. According to the second paragraph of Article 296 TFEU, ‘[l]egal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties’.
12. Article 263 TFEU confers jurisdiction on the Court to review the legality of acts of the Council on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application or misuse of powers. Article 264 TFEU specifies the legal consequences of a successful action for annulment:
‘If the action is well founded, [the Court] shall declare the act concerned to be void.
However, the Court shall, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive.’
13. Article 352 TFEU states:
‘1. If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament.
2. Using the procedure for monitoring the subsidiarity principle referred to in Article 5(3) [TEU], the Commission shall draw national Parliaments’ attention to proposals based on this Article.
Regulation No 2371/2002
14. Regulation No 2371/2002 (‘the 2002 Basic Regulation’) (9) was adopted on the basis of Article 37 EC — the predecessor of Article 43 TFEU, which set out how to adopt measures implementing the CAP (which, pursuant to Article 32(1) EC, also covered fisheries). That regulation concerned the (then) Community system for the conservation and sustainable exploitation of fishing resources under the CFP.
15. Article 1(1) of the 2002 Basic Regulation stated that the CFP ‘… shall cover conservation, management and exploitation of living aquatic resources, aquaculture, and the processing and marketing of fishery and aquaculture products where such activities are practised on the territory of Member States or in Community waters [(10)] or by Community fishing vessels or, without prejudice to the primary responsibility of the flag State, nationals of Member States’. Article 1(2) stated that the CFP was to provide for coherent measures concerning:
‘(a) conservation, management and exploitation of living aquatic resources,
(c) conditions of access to waters and resources,
(h) international relations’.
16. Article 2 was entitled ‘Objectives’. According to Article 2(1), first subparagraph, the CFP ‘… shall ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions’. (11)
17. Article 3(m) defined a ‘catch limit’ as ‘… a quantitative limit on landings of a stock or group of stocks over a given period …’. A ‘fishing opportunity’ was defined in Article 3(q) as ‘… a quantified legal entitlement to fish, expressed in terms of catches and/or fishing effort’.
18. In order to achieve the objectives of Article 2(1), Article 4(1) provided that ‘… the Council shall establish Community measures governing access to waters and resources and the sustainable pursuit of fishing activities’. Article 4(2) listed some examples of such measures, including measures establishing targets for the sustainable exploitation of stocks, limiting catches and fixing the number and type of fishing vessels authorised to fish. (12) Articles 5 and 6 described Council measures regarding, respectively, recovery plans and management plans.
19. Chapter IV contained ‘Rules on access to waters and resources’. Article 20 concerned the allocation of fishing opportunities:
‘1. The Council, acting by qualified majority on a proposal from the Commission, shall decide on catch and/or fishing effort limits and on the allocation of fishing opportunities among Member States as well as the conditions associated with those limits. Fishing opportunities shall be distributed among Member States in such a way as to assure each Member State relative stability of fishing activities for each stock or fishery.
2. When the Community establishes new fishing opportunities the Council shall decide on the allocation for those opportunities, taking into account the interests of each Member State.
3. Each Member State shall decide, for vessels flying its flag, on the method of allocating the fishing opportunities assigned to that Member State in accordance with Community law. It shall inform the Commission of the allocation method.
4. The Council shall establish the fishing opportunities available to third countries in Community waters and allocate those opportunities to each third country.
Regulation No 1006/2008
20. Council Regulation No 1006/2008 (‘the Fishing Authorisation Regulation’) (13) applies, inter alia, to fishing authorisations for third country fishing vessels to engage in fishing activities in Community waters. (14)
21. Article 2 defines (a) an ‘agreement’ as a ‘fisheries agreement concluded or for which a decision of provisional application has been adopted in accordance with [Article 218 TFEU]’; (c) ‘fishing activities’ as ‘the catching, retaining on board, processing and transferring of fish’; and (h) ‘fishing authorisation’ as ‘the entitlement to engage in fishing activities during a specific period, in a given area or for a given fishery’.
22. According to Article 18(1)(a), third country fishing vessels may engage in fishing activities in Community waters provided they have a fishing authorisation issued in accordance with the relevant chapter in the Fishing Authorisation Regulation. They may also land, tranship in ports or process fish provided they have a prior authorisation from the Member State in whose waters the operation will take place (Article 18(1)(b)).
23. In accordance with Article 20(1), the Commission is to examine applications for fishing authorisations taking into account the fishing opportunities granted to the third country and issue such authorisations in accordance with the measures adopted by the Council and the provisions contained in the agreement. The eligibility criteria for fishing authorisations are set out in Article 21. In particular, Article 21(a) states that third country fishing vessels must be ‘… eligible for a fishing authorisation under the agreement concerned and, where appropriate, [be] included in the list of vessels notified to carry out fishing activities under that agreement’. Article 22 requires third country fishing vessels which have been granted a fishing authorisation to comply with CFP provisions concerning conservation and control measures, other provisions governing fishing by Community fishing vessels in the fishing zone in which they operate and the provisions in the fisheries agreement concerned.
Regulations fixing and allocating fishing opportunities
24. Fishing opportunities are fixed and allocated in so-called ‘TAC Regulations’ — a ‘TAC’ being the total allowable catch: that is, the quantity that can be taken and landed from each fish stock each year. For the purposes of the present proceedings, I shall be referring to the TAC regulations fixing fishing opportunities for Venezuelan vessels in EU waters in, respectively, 2010, 2011 and 2012: Regulation No 53/2010 (‘the 2010 TAC Regulation’), (15) Regulation No 57/2011 (‘the 2011 TAC Regulation’) (16) and Regulation No 44/2012 (‘the 2012 TAC Regulation’). (17) Each was based on Article 43(3) TFEU and fixed fishing opportunities both for EU vessels and for third country vessels fishing in EU waters. (18)
25. Recital 30 in the preamble to the 2012 TAC Regulation referred expressly to the Declaration: ‘On 16 December 2011, the [European] Union made a declaration with respect to [Venezuela] on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of Venezuela in the [EEZ] off the coast of French Guiana. It is necessary to fix the fishing opportunities for snappers available to Venezuela in EU waters’. (19)
26. Annex VIII to each regulation defined the maximum number of fishing authorisations for third country vessels fishing in EU waters. (20) Annex VIII also imposed issuing conditions, namely conditions regarding the need to produce a valid contract between the vessel owner and a processing undertaking situated in the Department of French Guiana.
United Nations Convention on the Law of the Sea
27. The EU is a Contracting Party to the United Nations Convention on the Law of the Sea (‘UNCLOS’). (21)
28. Article 55 UNCLOS concerns the legal regime of the EEZ, which it describes as ‘… an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention’.
29. The rights, jurisdiction and duties of the coastal State in the EEZ are described in Article 56. In particular, the coastal State has ‘… sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil …’ (Article 56(1)(a)) and jurisdiction with regard to ‘the protection and preservation of the marine environment’ (Article 56(1)(b)(iii)). Article 56(2) states in exercising its rights and performing its duties under UNCLOS in the EEZ, the coastal State is to have due regard to the rights and duties of other States and is to act in a manner compatible with the provisions of UNCLOS.
30. Article 58 sets out the rights and obligations of other States in the EEZ:
‘1. In the [EEZ], all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms … of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the [EEZ] in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this Convention in the [EEZ], States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.’
31. As regards the conservation of living resources, Article 61 states:
‘1. The coastal State shall determine the allowable catch of the living resources in its [EEZ].
2. The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the [EEZ] is not endangered by over-exploitation. …
3. Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.
4. In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
5. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organisations, whether subregional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the [EEZ].’
32. Article 62, on the utilisation of living resources, states:
‘1. The coastal State shall promote the objective of optimum utilisation of the living resources in the [EEZ] without prejudice to Article 61.
2. The coastal State shall determine its capacity to harvest the living resources of the [EEZ]. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of Articles 69 and 70, especially in relation to the developing States mentioned therein.
3. In giving access to other States to its [EEZ] under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of Articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimise economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.
4. Nationals of other States fishing in the [EEZ] shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention …
33. On 7 January 2011, the Commission presented to the Parliament and the Council a proposal for a Council decision regarding access of Venezuelan vessels to EU waters. (22) The proposal was not discussed or negotiated with Venezuela. The Council subsequently sent that proposal to the Member States. The legal basis of the Commission’s proposal was Article 43 TFEU in conjunction with Article 218(6)(a) TFEU and the proposed decision thus required the Parliament’s consent.
34. The Commission noted that authorisations for Venezuelan vessels had not entailed any obligations on Venezuela towards the EU, other than requiring due respect for the fishing rules applicable in EU waters and specifying that part of the catches must be landed in the ports of French Guiana. Given also the limited scope of the fishing activities at issue and the time required to negotiate an international agreement, the Commission considered that a fully-fledged fisheries agreement was not necessary. Thus, the Commission proposed that the Council adopt a unilateral declaration the purpose and effects of which would be similar to those of an international agreement. The Commission relied, in support of its view that a unilaterally binding declaration would be equivalent to an international agreement, in particular on the judgment of the International Court of Justice in Nuclear Tests. (23)
35. On 26 January 2011, the Commission’s proposal was sent to the Council’s Working Party on External Fisheries Policy, which was asked to consider proposals by the Council’s Legal Service to change the legal basis and other drafting suggestions.
36. Following examination of the Commission’s proposal on 27 January and 23 March 2011, the General Secretariat of the Council by letter of 5 April 2011 asked the Committee of Permanent Representatives (‘Coreper’) to change the legal basis and merely to consult the Parliament. That letter stated that the Presidency had concluded that there was unanimity among the Member States to change the legal basis. In the revised proposal dated 7 April 2011, changes were also made to the terminology used in the Commission’s proposal. For example, the reference in the title to ‘access … to the [EEZ]’ was replaced with ‘the granting of fishing opportunities in EU waters’.
37. In the letter of 5 April 2011 and in two other letters dated 18 April and 5 December 2011, the Council informed Coreper that the Commission had made a declaration that (in its view) the Treaties did not authorise the Decision’s adoption on the basis of Article 43(3) TFEU together with Article 218(6)(b) TFEU.
38. By letter of 13 May 2011, the Council informed the Parliament of the change in legal basis and sought the Parliament’s opinion as soon as possible in order to ensure the continuation of the fishing activities concerned.
39. On 25 July 2011, the Parliament’s Legal Affairs Committee advised using the legal basis initially proposed by the Commission.
40. On 9 September 2011, the Council reminded the Parliament that it was necessary to take a position on the revised proposal as soon as possible and, in particular, asked the Parliament to consider the matter during its plenary session of 24 to 27 October 2011.
41. By a letter dated 26 October 2011, the President of the Parliament informed the Council Presidency that its Legal Affairs Committee had confirmed the legal basis suggested by the Commission and asked the Presidency to submit a further revised proposal (closer to the Commission’s original proposal). The Parliament also indicated that it would be impossible to consider the matter during the plenary session in October 2011.
42. By letter of 28 October 2011, the Council asked the Parliament to deliver its opinion during the plenary session of 14 to 17 November 2011 and to apply the urgent procedure in Rule 142 of the Rules of Procedure of the European Parliament. The Council emphasised that the revised proposal had to be adopted before the end of 2011. The Council has explained in its observations that it was concerned that otherwise the Commission would not include fishing opportunities for Venezuelan vessels in its proposal for the 2012 TAC Regulation (thus departing from the practice of the previous two years).
43. On 10 November 2011, the Commission presented its proposal for the 2012 TAC Regulation to the Council. That proposal did not provide for any fishing opportunities for Venezuela.
44. On 14 November 2011, the Council Presidency informed the President of the Parliament that the latter’s letter of 26 October 2011 had been received on 10 November 2011.
45. On 15 November 2011, the Parliament rejected the Council’s request for urgent treatment.
46. A draft report of the Parliament’s Committee on Fisheries, dated 16 November 2011, showed that that Committee also took the view that the legal basis should be Articles 43(2) and 218(6)(a) TFEU. The report further stated that, whilst the proposal would be signed only by the Council, it would give rise to obligations under international law for the parties in a similar manner to a fisheries agreement. However, the draft report was not adopted by the Parliament.
47. On 1 December 2011, the Council asked the Parliament to deliver its opinion no later than 15 December 2011, that is, during the plenary session of 12 to 15 December 2011 using the urgent procedure, or during an extraordinary session. In that letter, the Council also reserved the right to decide on the proposal without the advice of the Parliament.
48. On 13 December 2011, the Parliament again rejected the request for urgent treatment.
49. The Council finally adopted the revised proposal on 16 December 2011. It is common ground that it did so without waiting for the opinion of the Parliament. For its part, the Commission declared again that it rejected the Council’s changes to the proposal, in particular as regards its legal basis. The Commission also stressed that the Declaration was not aimed solely at granting fishing opportunities to third country vessels. The objective was to give a third State access to EU waters and to subject its vessels to a set of conservation and surveillance measures. On 16 December 2011, the Council also notified the Declaration, by Note Verbale, to the Venezuelan Mission to the EU.
50. Relying on the Decision, the Council then adopted the 2012 TAC Regulation on the basis of Article 43(3) TFEU.
51. On 30 January 2012, Venezuela requested further information from the Council regarding the consequences of the Parliament’s decision to ask the Court to annul the Decision.
52. On 20 March 2012, Venezuela applied for fishing authorisations. By decision of 26 March 2012, the Commission issued 38 fishing authorisations for Venezuelan vessels.
The Decision and the Declaration
53. The Decision was adopted ‘[h]aving regard to the [TFEU], and in particular Article 43(3), in conjunction with point (b) of Article 218(6) thereof’.
54. Its preamble states:
‘(1) Subject to their compliance with the applicable legally binding Union acts on the conservation and management of fishery resources, fishing vessels flying the flag of [Venezuela] have operated in EU waters in the [EEZ] off the coast of French Guiana for many decades.
(2) The processing industry based in French Guiana depends on the landings from those fishing vessels and therefore the continuity of those operations should be ensured.
(3) In order to ensure such continuity it is necessary that the Union make a declaration addressed to Venezuela confirming its readiness to issue fishing authorisations to a limited number of fishing vessels flying the flag of Venezuela on the condition that they comply with the applicable legally binding Union acts.’
55. Article 1 provides for the approval on behalf of the EU of the Declaration which is attached to the Decision.
56. The Declaration states:
‘1. The European Union shall issue fishing authorisations to a limited number of fishing vessels flying the flag of [Venezuela] to fish in the part of the [EEZ] off the coast of French Guiana that lies more than 12 nautical miles from the base lines, subject to the conditions set out in this Declaration.
2. In accordance with Article 22 of [the Fishing Authorisation Regulation], the authorised fishing vessels flying the flag of [Venezuela] shall, when fishing in the zone referred to in paragraph 1, comply with the provisions of the [CFP] concerning the conservation and control measures and other [EU] provisions governing fishing activities in that zone.
3. More particularly, authorised fishing vessels flying the flag of [Venezuela] shall comply with any relevant [EU] rules or regulations specifying, inter alia, the fish stocks that may be targeted, the maximum number of authorised fishing vessels and the proportion of catches to be landed into ports in French Guiana.
4. Without prejudice to the withdrawal of authorisations granted to individual fishing vessels flying the flag of [Venezuela] on grounds of their failure to comply with any relevant [EU] rules or regulations, the [EU] may at any time withdraw, by way of unilateral declaration, the specific undertaking expressed in this Declaration to grant fishing opportunities.’
Complaints and procedure
57. The Parliament and the Commission seek the annulment of the Decision under Article 263 TFEU and ask the Court to order the Council to pay the costs.
58. In Case C‑103/12, the Parliament makes two pleas in law. The first plea is that the Council erred by using Article 43(3) TFEU in conjunction with Article 218(6)(b) TFEU as the legal basis for the Decision. The second plea is made in the alternative: that the Council erred by failing to interpret Article 218(6)(a)(v) TFEU as precluding use of the procedure in Article 218(6)(b) TFEU for adopting the Decision.
59. In Case C‑165/12, the Commission makes three pleas in law. (24) The first plea is that the Council infringed, on the one hand, Articles 43(2) TFEU and 218(6)(a) TFEU by using Articles 43(3) TFEU and 218(6)(b) TFEU as the legal basis of the Decision and, on the other hand, Article 296, second paragraph, TFEU by failing to state reasons for the legal basis chosen. This plea is divided in three parts: the Council (i) erred in assimilating an unilateral declaration of access with an external action fixing fishing opportunities, (ii) erred by taking the position that subjecting Venezuelan vessels to the CFP flows from the external action fixing fishing opportunities and (iii) gave contradictory reasons for its choice of legal basis. The second plea is that the Council failed to respect the prerogatives of the Parliament by adopting the Decision without its consent. The third plea, made in the alternative, is that the Council violated Article 17 TEU and Article 218(6) TFEU by distorting the Commission’s proposal.
60. In Case C‑165/12, the Commission relies on Article 264(2) TFEU to ask the Court to maintain the effects of the annulled Decision until the entry into force of a new decision adopted, within a reasonable period, on the proper legal basis, namely Article 43(2) TFEU together with Article 218(6)(a) TFEU, or, in the event of a refusal by the Parliament to give its consent, until expiry of a reasonably short period after the Parliament’s decision refusing consent.
61. By order of 2 May 2013, the proceedings were joined.
62. The Czech, French, Polish and Spanish Governments have intervened in support of the Council, although the Spanish Government’s intervention was too late to enable it to submit a written statement. At the hearing on 19 November 2013, the Parliament, the Commission, the Council and the French and Spanish Governments presented oral argument.
63. In neither case is it suggested that Venezuelan vessels should not have been allowed to fish in EU waters. All parties have referred to the fact that, over a long period prior to the adoption of the Decision, fishing authorisations to do so were granted to Venezuelan vessels without any express title under international law. I would not rule out the possibility that such a practice might have resulted in legitimate expectations as regards access. Whether it in itself amounted to an agreement seems unlikely, not least because the facts show that the Declaration was adopted to remedy the lack of an international title and that, as the Commission points out, a previous attempt to negotiate an agreement with Venezuela had failed. (25) In any event, the applications in these proceedings do not concern the legal character and lawfulness of that past practice; and the Court does not need to rule on whether that practice was consistent with international law. Rather, the Parliament and the Commission here ask the Court to annul the Decision whereby a formal legal basis was given for that access.
64. Assuming that the initial question of whether the EU has capacity under international law to issue a unilaterally binding declaration is answered affirmatively, questions of competence then arise. Capacity to issue such an instrument does not suffice to conclude that, in accordance with the principle of conferral, the EU is competent to do so. (26)
65. If the Decision adopts a Declaration that takes the form of external action through which the EU assumes an obligation under international law, there must be a legal basis for that action. If the question ‘what can the EU do?’ is resolved, the next question is ‘how should the EU do it?’. (27) The same questions arise as regards internal action. A single provision might answer both questions, but that is not always the case.
66. Article 218 TFEU sets out how the EU can bind itself through an international agreement in an area in which it is competent (whether that competence is exclusive or shared with the Member States). As regards one step in that procedure — the involvement of the Parliament — it might be necessary also to refer to rules for adopting an internal measure in a particular area. However, the Treaties are silent as to the procedure for formulating a unilaterally binding declaration. Can the EU therefore, as regards a matter for which it otherwise has competence to act externally, use a unilaterally binding declaration (through which it assumes obligations under international law)? If so, how must such a declaration be adopted?
67. Thus, whilst both sets of proceedings concern the legal basis and procedure for adopting the Decision, those questions would be moot if the Treaties (and, as I will explain, international law) did not authorise the EU to assume an obligation towards a third State (28) by means of a unilaterally binding instrument — if that is indeed the proper characterisation of the Declaration as a source of obligations under international law. Pursuant to Article 47 TEU, the EU has legal personality and thus capacity to act. But does that imply also the capacity to adopt a unilaterally binding instrument? If that is so and the EU is otherwise competent, what procedures apply? If, on the other hand, the Declaration is an international agreement or forms part thereof, the question of how Article 218 TFEU applies to an agreement formed in this matter also arises. These underlying issues of principle, whilst not forming the basis of a specific plea, were none the less touched upon in some of the written observations and further explored at the hearing. They affect the legal basis of the Decision, in particular whether (and/or how) Article 218 TFEU applied at all.
68. I shall begin by discussing whether the Declaration is, as a matter of international law, a unilaterally binding instrument or an international agreement. If it is the former and if under international law an international organisation (29) does not have the capacity to bind itself through such an instrument, EU law must respect international law in that regard. (30) If international law does not exclude such capacity, the conditions for formulating and adopting such a declaration include those emanating from the internal rules by which that international organisation is governed — here, EU law. In these proceedings, there are thus questions involving the interface between international law and EU law.
The status of the Declaration
69. In their written observations, all parties appeared to assume that the Declaration is a unilaterally binding instrument and is intended to have legal effects. At the hearing, during which the parties were asked about the status of the Declaration under international law, the Parliament, joined by the Spanish Government, took the position that the Declaration is a unilaterally binding instrument and has effects equivalent to those of an international agreement. However, towards the end of the hearing the Parliament appeared to suggest that an international agreement had been formed. By contrast, the Spanish Government maintained its position that the Declaration was not an international agreement. The Commission was also of the view that the Declaration was a unilaterally binding instrument. It confirmed that no negotiations had taken place with Venezuela prior to the adoption of the proposal for the Decision (and therefore that no authorisation to negotiate pursuant to Article 218 TFEU had been requested). Venezuela acknowledged receipt of the Decision after its adoption and applied for fishing authorisations. The Commission submitted that it could not be established with certainty that an international agreement had thereby been formed. The French Government took the position that Article 218 TFEU applied in any event. Finally, the Council appeared to accept that the Declaration was a unilaterally binding instrument. However, it also stated that the Declaration was a constituent element of an international agreement which was subsequently accepted by Venezuela when the latter applied for fishing authorisations.
70. None of the parties at the hearing could offer examples of other unilaterally binding instruments adopted by the EU or by other intergovernmental organisations.
71. It is — to put it neutrally — a little puzzling that the Decision was apparently adopted in accordance with Article 218(6) TFEU without any of the institutions involved exactly knowing why and to what that procedure was applied.
72. As I see it, there are two options: either the Declaration is a unilaterally binding instrument or it is a unilateral declaration intended to produce legal effects only when subsequently accepted by the third State in whose favour it was made (in which case it is only one side of an international agreement).
73. I start with the content and objectives of the Declaration. (31)
74. The title of the Declaration makes it clear that it is addressed to Venezuela and that its subject is the grant of fishing opportunities in EU waters for Venezuelan vessels. As I read paragraph 1, the Declaration itself does not grant fishing authorisations. Instead, it contains a commitment by the EU that it ‘… shall issue fishing authorisations to a limited number’ of Venezuelan vessels ‘… subject to the conditions set out in this Declaration’, in particular in paragraphs 2 and 3. Thus, according to paragraph 2, authorised Venezuelan vessels will be required to comply with EU law on the CFP concerning the conservation and control measures and other EU law governing fishing activities in EU waters. Paragraph 3 then focuses on three specific obligations, namely compliance with EU law regarding (i) the fish stocks that may be targeted, (ii) the maximum number of authorised vessels and (iii) the proportion of catches to be landed into the ports in French Guiana.
75. Thus, the focus of the Declaration is on the EU’s commitment to grant (an unspecified number of) Venezuelan vessels access to its waters in order to catch certain (unspecified types of) stocks of fish there and land a(n) (unspecified) proportion of catches in ports in French Guiana.
76. Nothing in the text of the Declaration suggests that the validity of that commitment depends on Venezuela’s acceptance. Nor does the Declaration subject Venezuela to obligations without the latter’s consent. Authorised vessels will need to comply with EU law in order to take advantage of their authorisations; but that does not render the EU’s commitment in the Declaration conditional on Venezuela fulfilling an obligation. (32) There is also nothing in the text of the Declaration itself suggesting that it merely records an existing agreement concluded between the EU and Venezuela.
77. In paragraph 4, the EU reserves its freedom to withdraw at any time, by way of unilateral declaration, the commitment expressed in the Declaration. (33)
78. Thus, the Declaration is an instrument emanating from the EU that is intended to produce legal effects under international law and to be a basis on which Venezuelan vessels can rely to apply for fishing authorisations. However, neither those features nor the fact that the act is called a ‘Declaration’ resolve whether the Declaration is, as a matter of international law, a unilaterally binding instrument or an element of an international agreement.
79. Under international law, an international agreement can be formed through a unilateral instrument which expresses the intention to be bound by an offer already made or which is an offer that is subsequently accepted. The definition of a ‘treaty’ in the 1969 and 1986 Vienna Conventions, (34) although not exhaustive as to all forms of treaty under international law, (35) is sufficiently wide to include treaties that are concluded in this manner. Thus, in accordance with that definition, a treaty can be embodied in two or more related instruments.
80. Consistent therewith, EU law also does not distinguish between types of agreement according to how they are concluded. Article 218(7) TFEU provides for a simplified procedure only for modifications to an agreement. It seems to me that, whenever the EU is competent to negotiate and conclude an international agreement, the Treaties authorise the EU to exercise that competence by concluding any form of agreement covered by the definitions of a treaty in the 1969 and 1986 Vienna Conventions (and possibly, indeed, forms not covered by those definitions). (36)
81. However, in the present proceedings, I have found no evidence of Venezuela’s intention to be bound by the terms of the Declaration. When Venezuela applied for fishing authorisations, it seems to me that it did not ‘accept’ the EU’s offer with an intention to be bound by it as an agreement. Rather, in so doing it relied in good faith on the EU’s undertaking in the Declaration and subsequently confirmed in the 2012 TAC Regulation (which had by that stage already been adopted). The fact that the Declaration produced its intended effects, and thus benefited Venezuela, is an insufficient basis for finding that Venezuela accepted to be bound by the Declaration as an agreement concluded between it and the EU. Nor can mere receipt of the notification of the Declaration or Venezuela’s subsequent inquiry into the effect of proceedings before the Court constitute such a basis. Also, if the entire purpose of the Decision was to ensure that there was an international title for the access to EU waters before fishing opportunities could be fixed and authorisations could be issued, an agreement formed only when Venezuela applied for fishing authorisations after fishing opportunities were fixed fails to satisfy that objective.
82. Moreover, if the intention was merely to formulate an offer in the Declaration, the Commission should have sought authorisation from the Council pursuant to Article 218(3) TFEU prior to the negotiations (of which the formulation of such an offer would have been part). The Council would then have needed to intervene again, pursuant to Article 218(6) TFEU, when the treaty was formed, that is, when Venezuela accepted the offer and after obtaining (as appropriate) either the consent or the opinion from the Parliament.
83. If the Declaration is not an element of an international agreement, is it a unilaterally binding instrument authorised under international law and EU law?
84. In international law, unilateral instruments can take different forms and have different functions and legal (and/or political) effects. For example, declarations can be used to recognise new States, to make a political statement, to accept the jurisdiction of a court or to make an interpretative statement that satisfies the conditions for being considered as evidence of the existence of customary international law. In the context of the present proceedings, the focus is on a unilateral declaration in written form by which the EU assumes, as a matter of international law, obligations in favour of a third State. (37)
85. The capacity of States to make such a type of declaration is uncontested under international law, (38) even if the status under customary international law of some of the conditions that render such a declaration binding might not yet have been determined or confirmed. Whether other legal persons, in particular international organisations, have the capacity to make similar declarations has, to my knowledge, not yet been decided by any international court or tribunal or examined in detail by the United Nations International Law Commission (‘the ILC’).
86. International organisations, just like States, can have legal personality. Unlike States, the capacity that results from that legal personality must be conferred on the organisation (in express or implied terms). I see no reason why international law would preclude an international organisation with international legal personality from having the capacity to make a unilateral declaration with the intention to be bound as long as the constitutive treaties establishing that organisation authorise it to do so. (39) If an international organisation has the capacity thereunder to conclude international agreements and thereby to accept to be bound on that basis vis-à-vis States or other international organisations (irrespective of the type of the obligation and in particular whether it is reciprocal), in principle international law does not preclude that organisation having the capacity to accept to be bound by the same obligation using a unilateral declaration.
87. Furthermore, whilst different sources of obligations may be subject to particular conditions regarding, for example, their formation, validity and termination, the basic underlying principles — in particular the principles of good faith and consent — remain the same. For that reason, it seems to me that conditions regarding, for example, formation, validity and withdrawal that have been developed in international law regarding declarations made by States can likewise be applied to declarations made by an international organisation, even if some conditions cannot apply in exactly the same manner.
88. What are those conditions?
89. Under international law, what matters is the expression (oral or written) in clear and specific terms (40) of the intention to produce legal effects in international law, and thus also to create obligations for the author of the declaration. As long as that intention is clear and is made publicly, international law generally does not prescribe formal requirements. (41) Intention must be established in the light of the declaration’s actual content and all the factual circumstances in which it was made (42) and be expressed by the authority vested with the power to make such binding declarations. (43)
90. This approach is also reflected in the ILC’s Guiding Principle 1 which states: ‘Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations.’ (44) Whilst the Guiding Principles are not binding and their authority and durability may need to be established over time, I nevertheless consider them to be a useful extrapolation of case-law and State practice as regards, in particular, the binding character of unilateral declarations. (45)
91. It then follows from the principle of good faith that ‘… interested States may take cognisance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected’. (46) That principle applies also to the circumstances in which a unilaterally binding declaration can be withdrawn.
92. However, consistently with the principle that no obligations can be imposed on a State without its consent, (47) a unilaterally binding declaration cannot create obligations for other States. Thus, the International Court of Justice has held that a unilateral declaration is binding where ‘… nothing in the nature of a quid pro quo, nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made’. (48)
93. In the present proceedings, the Declaration was made public through publication and notification to Venezuela. As I have explained, it states the intention of the EU to undertake to grant fishing opportunities and issue fishing authorisations to Venezuela. (49) Through the Declaration, the EU accepts that it will refrain from exercising the sovereign right that it has pursuant to Article 56(1)(a) UNCLOS to refuse third country vessels access to EU waters in order to fish there. That commitment does not of itself authorise Venezuelan vessels to enter the EEZ of French Guiana and fish there. Pursuant to both EU law and international law, further limitations as regards the right to fish must first be established, notably through the fixing and allocation of fishing opportunities. On that basis, individual fishing authorisations can then be issued.
94. In order to be binding, declarations must be made by an entity that is authorised to do so. Whether that is the case in the present proceedings depends on the EU’s competence under the Treaties.
95. The EU must act within the limits of the competences conferred upon it by the Member States in the Treaties. (50) Declaration 24 annexed to the Final Act of the Intergovernmental conference which adopted the Treaty of Lisbon, concerning the legal personality of the EU, confirmed that legal personality ‘… will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties’. (51)
96. The Treaties do not expressly authorise the use of unilaterally binding declarations in the EU’s external relations (in areas within the EU’s external competence). By contrast, they do authorise the EU to accept obligations in favour of third States and international organisations through an ‘international agreement’. Article 218 TFEU replaced Article 300(1) EC, which in turn replaced Article 228(1) EEC. The latter two provisions used only the word ‘agreement’ in describing the internal procedure to be used in negotiating and concluding international agreements. The Court said in Opinion 1/75 that the word ‘agreement’ is used ‘in a general sense to indicate any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation’. (52) In Case C‑327/91 France v Commission, the Court also used the definition of a ‘treaty’ concluded between an international organisation and a State that is to be found in Article 2(1)(a)(i) of the 1986 Vienna Convention. (53) However wide the definition of the term, it is clear that (in whatever context) an agreement presupposes the meeting of minds of at least two parties. It thus does not cover the circumstance where the EU expresses its intention to be bound by the terms of its declaration without the need for acceptance by the third State in whose favour that declaration is made. Nor does it apply to instruments whereby no binding commitment is entered into. (54)
97. I nevertheless consider that, under EU law, the EU can in principle accept an obligation under international law through a unilaterally binding declaration. My position is based in essence on the same considerations (55) that led me to conclude that international law does not preclude international organisations from formulating unilaterally binding declarations.
98. One of the essential elements of the EU’s legal personality is that it can assume obligations under international law. The provisions in the Treaties on international agreements expressly confirm this. International agreements are one source of such obligations; unilaterally binding declarations are another.
99. For further support, I draw parallels with the Court’s reasoning in ERTA. (56) There, the lack of a generally applicable provision in the Treaty delineating how to negotiate and conclude an international agreement was not an obstacle to confirming that the EU had competence to do so. (57) In that case, the Court resolved the silence in the treaty text by examining the general system of (then) Community law in the sphere of relations with third countries. (58) Its starting point was the legal personality of the (then) European Economic Community. (59) Before even considering the subject-matter of the agreement, the Court held that legal personality meant that ‘… in its external relations the Community enjoys the capacity to establish contractual links with third countries …’. (60)
100. As I read that part of ERTA, the Court accepted that the concept of international legal personality was to be interpreted by reference to the capacities which international law attaches to it. By analogy, provided that international law does not preclude an international organisation from having the capacity to make and to be bound by unilateral declarations, the fact that the EU has international legal personality means that it can assume obligations under international law in this manner.
101. I note also that the drafters of the European Convention on the Future of Europe intended that, by making the EU a subject of international law, the EU would ‘… be able to avail itself of all means of international action (right to conclude treaties, right of legation, right to submit claims or to act before an international court or judge, right to become a member of an international organisation or become a party to international conventions, e.g. the ECHR, right to enjoy immunities), as well as to bind the Union internationally’. (61) I therefore consider that the EU can issue unilaterally binding declarations through which it assumes obligations under international law.
102. How this is to be done is a matter of EU law. (62)
103. As I have already mentioned, Article 218 TFEU sets out how obligations assumed by the EU vis-à-vis third States (and other international organisations) through an international agreement are to be negotiated and how such agreements must be signed and concluded. In that provision, separate rules concern the Common Foreign and Security Policy and two paragraphs do not concern the processes of negotiation, signature and conclusion (Article 218(9) and (11) TFEU). Neither Article 218 TFEU nor any other Treaty provision expressly concerns the procedure for the EU’s external action through a unilaterally binding declaration.
104. If the EU is to exercise such competence, it cannot be true that no procedural rules apply. Otherwise, there would be a free-for-all as to, inter alia, who can take the initiative, what institutions are involved and who needs to talk to whom and when. Procedural guarantees are needed also because such a unilateral declaration once validly made will bind the EU institutions and may therefore prevail over EU acts.
105. No party in these proceedings has argued that Article 218 TFEU does not apply.
106. I find the precise procedural basis of a decision adopting a unilaterally binding declaration less evident.
107. The fact that the Treaties do not lay down the procedure for adopting a particular type of external action through which the EU assumes obligations under international law is not exceptional. Historically, the Treaties have adapted to the practice of the EU’s external relations and the Court’s case-law in that regard. Given that unilaterally binding declarations by international organisations are almost unprecedented, the absence of a separate, express procedure is unsurprising.
108. One option is to consider that, in the absence of an express procedural legal basis, the EU cannot exercise its external competences through a unilaterally binding declaration. It is for the Member States to amend the Treaties. The danger in that approach is that it implies that the EU can only use forms of external action for which specific procedural rules in the Treaties exist. That might undermine the effectiveness of the EU’s action on the international scene. The facts underlying the present proceedings demonstrate that risk. The EU wanted to avoid using the procedure for negotiating and concluding an international agreement in order to respond quickly to the need to grant an international title for access to its waters (and in that manner comply with EU law and international law).
109. It is not for the Court to design a set of procedural rules for which there is no basis in the Treaties. That said, there may be other possibilities.
110. A second option would be to use Article 352(1) TFEU as the legal basis for the procedure to be applied for adopting a decision approving a unilaterally binding declaration whose subject-matter falls within the (external) competence of the EU. That would then function as a type of default procedure for EU external action for which the Treaties do not provide procedural rules. As such, the text of Article 352(1) TFEU does not appear to exclude that possibility. (63) It can be invoked where EU action is necessary to attain one of the objectives set out in the Treaties and the Treaties do not otherwise provide for the necessary powers for that action. Its function is to fill the gap where no specific Treaty provisions confer explicit or implied powers to act but such powers are none the less necessary. (64) This option involves accepting that the missing ‘necessary powers’ can include the procedural rules for adopting a unilaterally binding declaration. Under Article 352(1) TFEU, the Declaration would need to be adopted by the Council acting unanimously on the Commission’s proposal and after obtaining the Parliament’s consent. Pursuant to Article 352(2) TFEU, the Commission would also need to draw national Parliaments’ attention to proposals with this legal basis. The adoption of a unilaterally binding declaration would thus involve using a procedure that is considerably stricter and more cumbersome in some respects than that foreseen for international agreements in Article 218 TFEU. There is also the danger that each and every form of external action for which no explicit procedural rules exist would then have to be adopted pursuant to this procedure.
111. In the present proceedings this solution would imply that the legal basis of the Decision had to include Article 352(1) TFEU and the provision(s) of the Treaties setting out the objectives of the external action — thus referring to Article 43(2) or (3) TFEU. However, the question whether the Council had to obtain the consent or the opinion of the Parliament would not depend on which subparagraph of Article 43 TFEU applied. According to Article 352(1) TFEU, the Council would have needed to obtain its consent.
112. A third option would be to apply Article 218 TFEU by analogy.
113. Unilaterally binding declarations and international agreements are separate sources of obligations under international law. However, both entail a decision by the EU to bind itself under international law. It thus seems valid to ask: why should the manner in which that decision is taken be fundamentally different for unilaterally binding declarations as compared to international agreements? The former are not mere political declarations or statements through which the EU is represented at the international stage or that are made in the context of the EU’s involvement in decision-making at the international level. Nor are they a type of internal decision that should be adopted according to procedures that apply for internal action (such as, possibly, the ordinary legislative procedure).
114. If that is true, can Article 218 TFEU apply by analogy?
115. In essence, Article 218 TFEU sets out the constitutional procedures to be applied when the EU acts in order to become a party to an international agreement, that being the most obvious way in which the EU assumes obligations under international law. States too typically foresee constitutional procedures for the same purpose.
116. Article 218 TFEU is based on a particular interinstitutional balance between the Commission (which initiates the process and represents the EU externally), the Council (which is responsible for deciding that the EU is to be bound by international law) and the Parliament (which must at all times be informed and may be asked either to consent or to give an opinion). (65)
117. Article 218(3) and (4) TFEU concerns the EU’s involvement in the negotiations on the agreement, and thus the content of the commitments to which the EU may then agree. In essence, the Commission is to represent the EU following a decision of the Council to that effect. These stages in the procedure might appear to be without purpose for a unilaterally binding declaration. There is no text to negotiate with third parties; and requiring the Commission first to seek authorisation from the Council to prepare a proposal for the declaration seems unnecessary, since the latter has the final say anyway on whether the EU is to be bound under international law. For unilaterally binding declarations, these distinctions need not be made. Nor can Article 218(7) TFEU apply, for lack of an agreement that provides for modifications to be adopted by a simplified procedure or by a body it set up.
118. However, as I see it, the Council’s competences to authorise the signing of the agreement and to conclude the agreement are based on a particular interinstitutional balance between it and the Commission that is particular to that part of the procedure. There is also the role of the Member States to consider. (66) Thus, for example, whether or not (and possibly the extent to which) the Council can refuse to adopt a decision concluding the agreement must be considered in the light of (at least) the content of the agreement, the Commission’s proposal, the Council’s negotiating directions and any other elements relevant to that step of the procedure. If Article 218(6) TFEU is to apply by analogy to the adoption of a decision approving a unilaterally binding declaration, can one simply assume that an identical interinstitutional balance should exist and that the respective competences of the Commission and the Council will be the same?
119. The remaining part of Article 218(6) TFEU is more readily transposable to decisions approving unilaterally binding declarations. In essence, the Council is to decide (in principle by qualified majority), always with some form of involvement of the Parliament. Thus, even where the agreement covers a subject-matter for which the Treaties do not foresee a role for the Parliament, an international agreement regarding the same subject-matter will require input by the Parliament which is also, pursuant to Article 218(10) TFEU, to be immediately and fully informed at all stages of the procedure.
120. Then there is Article 218(9) TFEU, which sets out the procedure for ‘establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects’. There do not appear to be convincing reasons for applying that specific procedure also to unilateral declarations made by the EU that are intended to bind the EU under international law independently from any other action by a third party. In fact, if Article 218(9) TFEU applied to unilaterally binding declarations, it should not matter whether or not they are made in the context of a body set up by an agreement which is called upon to adopt acts having legal effects.
121. The Court’s jurisdiction under Article 218(11) TFEU is not at issue in the present proceedings. The objective of that provision is to ‘… [forestall] complications which would result from legal disputes concerning the compatibility with the Treaties of international agreements binding upon the [EU]’. (67) By having the Court take a position on the content and procedure for adopting such an agreement, serious difficulties and adverse consequences can be avoided. (68) Just like an international agreement, a unilaterally binding declaration once made results in an obligation under international law on which third States may rely and whose breach may result in responsibility under international law. The facts in the present proceedings show this well, further supporting the view that Article 218(11) TFEU could be transposed to unilaterally binding declarations.
122. A fourth option would be to apply the provisions on which the external competence itself is based. That rule might lead to different results. In so far as that competence is explicit, its application might result in applying again by analogy Article 218 TFEU (or specific rules regarding the international agreements in a particular area). If that competence was implied, the result would be to apply the same procedural rules as applied to the (explicit) internal action. Thus, for example, a unilaterally binding declaration might need to be adopted by applying the ordinary legislative procedure. In that case, the arguments that I have outlined above against applying Article 218 TFEU by analogy (because the provision simply does not take into account the character of a unilaterally binding declaration or the way in which it is formulated and therefore risks upsetting the allocation of powers between the institutions) would seem even more pertinent here. (69)
123. Thus, each of these options has weaknesses. On balance, however, applying Article 218 TFEU by analogy appears to be the most workable solution, even if that conclusion requires stretching and squeezing the text of the provision because not each and every part can apply to unilaterally binding declarations in the same way as to an international agreement.
124. Were the Court to decide that Article 218 TFEU cannot serve as the procedural legal basis for the Decision, that would be sufficient grounds for annulling the Decision, without it being necessary to consider the pleas actually made by the Parliament and the Commission.
125. I now turn to consider these pleas on the assumption that the Court will endorse the use of Article 218 TFEU as the procedural legal basis for the EU to make a unilaterally binding declaration.
Use of the wrong legal basis (the first plea in Case C‑103/12 and first and second parts of the first plea in Case C‑165/12)
126. The Parliament and the Commission argue that the Council erred in basing the Decision on Articles 43(3) and 218(6)(b) TFEU instead of Articles 43(2) and 218(6)(a) TFEU.
127. In their submission, Article 43(3) TFEU is an exception to Article 43(2) TFEU and therefore should be interpreted narrowly. In essence, the latter is a basis for any (legislative) measure necessary for achieving the objectives of the CFP whereas the former is a basis only for the (regulatory) measures there listed, in particular measures that fix and allocate fishing opportunities. Article 43(3) TFEU mentions neither the grant of access to EU waters to third country vessels in order to fish there nor the authorisation to exercise fishing activities.
128. Article 43(3) TFEU does not concern the adoption of legislative acts within the meaning of Article 289 TFEU. The latter introduces the ordinary legislative procedure (which is defined in Article 294 TFEU) and refers to the use of special legislative procedures in specific cases exhaustively listed in the Treaties. Thus, decision-making powers which do not fall within either category must be non-legislative procedures. Indeed, according to the Commission, fixing fishing opportunities is in essence an executive act, even if the procedure in Article 43(3) TFEU is sui generis. The Parliament submits that no measure can be taken on the basis of Article 43(3) TFEU, even when viewed as an autonomous legal basis, without a preliminary (political) decision on the objectives of the CFP — a decision which has to be adopted under Article 43(2) TFEU.
129. The Commission submits that the Council’s textual argument (70) is focused on, in particular, the French version of Article 43(3) TFEU (‘mesures relatives à’, that is to say, ‘measures relating to’). The English version uses ‘measures on’ which suggests a more direct and stronger connection. Whilst Article 43(3) TFEU is wide enough to cover certain rules that are functionally related to the fixing of fishing opportunities, it cannot mean that each and every measure that ‘relates’ (even remotely) to the fixing of fishing opportunities should be based on that provision. The Parliament adopts a stricter approach and considers that only decisions concerning the subject-matters exhaustively listed in Article 43(3) TFEU may be based on that provision.
130. The Parliament and the Commission further argue that EU law provides for a three-step process for giving third country fishing vessels access to EU waters and the resources therein. First, potential access is given by means of an international agreement whose legal basis is Article 43(2) TFEU (and which is to be adopted in accordance with Article 218(6)(a)(v) TFEU). Second, the Council may then proceed to grant fishing opportunities on the basis of Article 43(3) TFEU. Third, following the fixing and allocation of those fishing opportunities, the Commission issues fishing authorisations for individual vessels. A third country cannot be granted fishing opportunities by means of a Council decision (the second step) without the existence of an international agreement (the first step) concluded on behalf of the EU in accordance with Article 218(6)(a)(v) TFEU. The conceptual distinction between access to water and access to resources is also apparent from the fact that access to water is typically given for a long, possibly indefinite, period whereas fishing opportunities are fixed and allocated on an annual basis.
131. The Parliament and the Commission submit that the objectives of the Decision are to grant Venezuelan vessels a right of access to Union waters in order to exercise fishing activities and to submit those activities to safeguards in order to ensure that they respect the CFP objectives. The reference in paragraph 2 of the Declaration to Article 22 of the Fishing Authorisation Regulation is not merely declaratory but subjects Venezuelan fishing vessels to the CFP rules. In that regard, the Commission’s original proposal and the Decision are similar (if not identical). That fact in itself shows that the objective of the Decision is unchanged, despite the change in legal basis.
132. The Council, supported by the intervening Member States, argues that the Decision (including the Declaration attached to it) relates to the fixing of fishing opportunities. The Council submits that the use of the phrase ‘shall adopt measures on’ in Article 43(3) TFEU suggests that it can be used as the legal basis for measures other than those fixing and allocating fishing opportunities. Thus, it covers a quantified right to fish that can be expressed in different ways, including a TAC, a limitation on fishing activity itself (for example, in terms of the kilowatts used per day or the number of days during which vessels can be absent from port) or a limitation on the maximum number of vessels.
133. Whilst Article 43(3) TFEU is a form of lex specialis in relation to the lex generalis in Article 43(2) TFEU, the Council argues that it is not an exception to the latter. It should therefore not be interpreted restrictively.
134. The Council further submits that, by adopting Article 43(3) TFEU, the Treaty drafters intended to introduce a simplified procedure for adopting Union measures aimed at conserving resources in Union waters and to react more quickly to scientific opinions that form the basis for those measures.
135. The Council contests the argument that in so far as a measure is connected to CFP objectives it must be based on Article 43(2) TFEU and that no measure can be adopted on the basis of Article 43(3) TFEU without a prior decision on political choices regarding the CFP under Article 43(2) TFEU. The Council further challenges the applicants’ ‘artificial’ distinction between access to waters and access to resources.
136. As regards the Decision, the Council submits that the EEZ off the coast of French Guiana is situated between territorial waters and the high sea: it is a sui generis zone to which UNCLOS applies. The coastal State’s competence over the EEZ is limited and whether its consent is needed for access to the EEZ depends on the purpose of that access. In that regard, neither international law nor EU law requires the existence of a formal agreement.
137. The Council submits that neither the objective nor the content of the Declaration here at issue go beyond the scope of application of Article 43(3) TFEU, that is, fixing and allocating fishing opportunities. Even if the Court were to find that paragraphs 2 to 4 of the Declaration cannot be based on Article 43(3) TFEU, that provision is none the less the proper legal basis because those paragraphs are ancillary to the main objective of the contested Decision, namely, to confirm the Union’s commitment to authorising Venezuelan vessels to fish in the EEZ.
138. In the present proceedings, the Court is asked to interpret Article 43(2) and (3) TFEU (71) in order to determine on which provision the contested Decision should have been based. Thus, it is not necessary to define exhaustively all the types of measure to which each provision applies.
139. All parties appear to agree that if Article 43(3) TFEU is not the proper legal basis for the Decision, then Article 43(2) is.
140. It is settled case-law that the choice of legal basis of an EU measure must be based on objective factors, in particular the aim and the content of the measure, which are capable of judicial review. (72) Thus, it is necessary to examine the Decision’s content and objectives. The legislative context may also be considered. (73) The legal basis of the measure then determines the procedures to be followed in adopting it. (74)
141. If a measure is found to pursue a twofold purpose or has a twofold component and if one of those is identifiable as the main or predominant purpose or component (whereas the other is only incidental), the measure must be founded on a single legal basis, namely that required by the main or predominant purpose or component. (75) If a measure pursues several objectives or has several components which are indissociably linked and without one being secondary and indirect in relation to the other, exceptionally it will be founded on various corresponding legal bases. (76)
142. I start by examining the content and objective(s) of the Decision.
143. Recital 1 in the preamble to the Decision describes the practice of Venezuelan vessels operating in EU waters, in particular the EEZ off the coast of French Guiana, subject to complying with applicable EU law governing the conservation and management of fishery resources. Recital 2 emphasises why it is necessary to secure the continuity of those operations, namely because the processing industry in French Guiana depends on the landings from those vessels. Recital 3 describes the subject of the Declaration, that is, to confirm the EU’s ‘readiness to issue fishing authorisations to a limited number of fishing vessels flying the flag of Venezuela on the condition that they comply with the applicable legally binding Union acts’.
144. Article 1 of the Decision then approves the Declaration directed to Venezuela on behalf of the EU. Article 2 concerns the notification of the Declaration to Venezuela.
145. I have already scrutinised the content and objectives of the Declaration when examining whether the EU was competent to adopt it. (77)
146. As I see it, through the Declaration, the EU undertakes to grant access to EU waters to Venezuelan vessels in order to fish there. That specific type of access is to be given only after fishing opportunities are fixed and fishing authorisations are issued.
147. However, the Decision (including the Declaration attached to it) does not:
– set for 2012 the maximum number of fishing authorisations for Venezuelan vessels or the maximum number of vessels present at any time, or identify the type of fish (that was done subsequently in Article 36(1) of and Annex VIII to Regulation No 44/2012); (78)
– set the specific conditions to be satisfied for obtaining fishing authorisations for Venezuelan vessels in EU waters in 2012 (that was done subsequently in a footnote to Annex VIII to Regulation No 44/2012); (79) or
– grant fishing authorisations for individual Venezuelan vessels (that was done subsequently by the Commission’s Decision of 26 March 2012). (80)
148. Through the Declaration, the EU undertook to give access to the EEZ off the coast of French Guiana, which extends no further than 200 nautical miles from the baseline of the territorial sea, in order to fish there. Without an expression of consent on behalf of the EU, Venezuelan vessels would be precluded from entering those waters. That is so because of the rules of international law governing the rights and freedoms of the coastal State and other States in the EEZ of the former. Pursuant to Article 56(1)(a) UNCLOS, it is the coastal State (and here, through France, the EU) which has sovereign rights for the purpose of, inter alia, exploring and exploiting, conserving and managing the natural resources in those waters. Thus, that coastal State has the right to refuse or allow vessels flying the flag of other States access to its EEZ for any purpose other than those (such as the freedom of navigation) for which all States have, under Article 58(1) UNCLOS, the right of access to the EEZ. As the Court noted in Poulsen and Diva Navigation, (81) the jurisdiction of the coastal State in both the territorial sea and the EEZ is not absolute; pursuant to the law of the sea (and in particular UNCLOS), the coastal State must respect the right of innocent passage through its territorial sea of vessels flying the flag of other States and in particular the freedom of navigation in exercising its powers over the EEZ. Fishing is not, however, innocent passage or free navigation.
149. The coastal State also has duties, in particular as regards the conservation (Article 61 UNCLOS) and utilisation (Article 62 UNCLOS) of living resources in the EEZ. Thus, according to Article 62(2) UNCLOS, if the coastal State does not of itself have the capacity to harvest the entire allowable catch, it shall ‘through agreements or other arrangements’ give other States access to the surplus. When that access is given, Article 62(4) UNCLOS requires nationals of other States fishing in the EEZ to comply with the conservation and other terms and conditions that apply according to the law of the coastal State.
150. In my opinion, the Declaration serves exactly that function: it is a type of ‘agreement or other arrangement’ through which the EU undertakes to give access to a third State. Without that expression of consent, Venezuelan vessels cannot fish in EU waters.
151. If such an instrument must be adopted in accordance with the procedural rules in Article 218 TFEU, and if it covers a field to which either the ordinary legislative procedure or a special legislative procedure applies, the Parliament had to give its consent before the Council could adopt a decision approving the Declaration. That is because both internal procedures are legislative procedures.
152. I distinguish here between the nature of the competence and the bases for establishing the Parliament’s involvement in external action pursuant to Article 218 TFEU. Without entering into a textual analysis of the terms ‘areas’ and ‘fields’ used in the English versions of the Treaties, the description of ‘areas’ in Articles 3(1), 4 and 6 TFEU for establishing, respectively, the EU’s exclusive, shared and supporting competences concerns the division of competences between the EU and the Member States. By contrast, Article 218(6) TFEU (which uses the term ‘fields’ in the English version) concerns, as I see it, the division of competence between the EU institutions, in particular the competence of the Parliament in relation to that of the Council.
153. Therefore, the fact that the EU has exclusive competence, pursuant to Article 3(1)(d) TFEU, for the conservation of marine biological resources under the CFP and that measures necessary to achieve the pursuit of CFP objectives must be adopted, in accordance with Article 43(2) TFEU, by the Parliament and the Council acting in accordance with the ordinary legislative procedure (82) does not of itself resolve the issue of the proper legal basis for adopting the Decision approving the Declaration. So to conclude would be to ignore the text of Article 43(3) TFEU, which foresees that certain measures pursuing CFP objectives may be taken without the Parliament’s consent because they concern matter(s) that are covered by a non-legislative act.
154. An agreement might cover one or more fields, parts of which are governed by the ordinary legislative procedure and parts by a different procedure. However, in the present proceedings, no party has argued that, because of its subject-matter, the Decision should have been adopted on the basis of Article 43(2) and 43(3) TFEU.
155. The Decision contributes to the optimum use of living resources in the EEZ by managing those resources in order to yield the economic and social advantages they produce and conserving them. Thus, it is a measure necessary to achieve CFP objectives, in particular those defined in Article 39 TFEU. (83) The starting point should therefore be that the Decision must be based on Article 43(2) TFEU.
156. I do not consider that Article 43(3) TFEU changes that position. That provision applies to measures which are described in narrower terms but are all none the less also necessary for the pursuit of CFP objectives. Thus, the text of Article 43(3) TFEU shows that it applies at least to measures that fix actual prices, levies and aid, limit the quantities that can be fished (in whatever manner those quantities are defined or measured), fix fishing opportunities and determine the Member States and third States to which fishing opportunities are allocated to fish what, when, where and possibly how and for what purpose.
157. The Decision at issue does none of these things. (84)
158. However, the parties disagree on whether Article 43(3) TFEU covers anything beyond that list of measures, in particular as regards the final phrase in that provision ‘… on the fixing and allocation of fishing opportunities’. The core of the Council’s argument in that regard seems to be based on the connecting term used to describe the measure and its subject-matter. Thus, for example, the French version has ‘les mesures relatives à’, the German version ‘die Maßnahmen zur’, the Dutch version ‘de maatregelen … voor’ and the Spanish version ‘las medidas relativas a’. Most other language versions appear to use a similar connecting term. However, the English version has ‘measures on’.
159. The difficulty in defining the scope of the Council’s competence under Article 43(3) TFEU lies in the fact that, on the one hand, an exhaustive list of subject-matters is described therein and, on the other hand, the connecting term widens the scope of measures that are covered under Article 43(3) TFEU.
160. I agree with the Council that the connecting term used in Article 43(3) TFEU suggests that that provision, when read in isolation, might cover not only measures that actually fix and/or allocate fishing opportunities but also those which in some broader sense ‘relate to’ their fixing and allocation. Reading the provision together with Article 44, second paragraph, TFEU shows that in other contexts the Treaty drafters used ‘shall fix’ as distinct from ‘measures on the fixing’. (85) But that begs the question of what ‘relate to’ should mean in that context.
161. I am not convinced that Article 43(3) TFEU applies to every measure that is somehow connected to fishing opportunities.
162. The immediate context of the connecting term consists of the verb ‘fixing’ and the noun ‘allocation’. That suggests that Article 43(3) TFEU does not cover all measures on or relating to fishing opportunities. Rather, measures under Article 43(3) TFEU must relate to the acts of defining what the fishing opportunities are and allocating them between Member States and possibly third States. Measures relating to other aspects of fishing opportunities are not covered under Article 43(3) TFEU.
163. Article 43(3) TFEU must also be read within the context of Article 43 TFEU as a whole. Paragraphs 2 and 3 of Article 43 TFEU can be distinguished on two bases: the measures they prescribe and the procedures they lay down for adopting those measures.
164. Whilst procedure cannot determine the substantive scope of application of a provision, the fact is that the drafters prescribed the ordinary legislative procedure under Article 43(2) TFEU for the wider category of measures; and a non-legislative procedure under Article 43(3) TFEU for measures that would otherwise have been subject to Article 43(2) TFEU. Thus, as I see it, irrespective of whether Article 43(3) TFEU is or is not an exception to Article 43(2) TFEU that is to be interpreted restrictively, Article 43(3) TFEU identifies a sub-category of measures that would otherwise fall under Article 43(2) TFEU and subjects those measures to a separate procedure that excludes the Parliament’s involvement. In my view, that is because measures under Article 43(3) TFEU involve decisions which are to be taken on the basis of a detailed (and often technical) assessment, as appropriate to the circumstances, of pertinent information regarding sustainable levels of exploitation of fisheries and conservation and management of those resources. By contrast, measures that are a prerequisite to the fixing and allocation of fisheries opportunities fall within the scope of Article 43(2) TFEU.
165. Prior to the entry into force of the Lisbon Treaty, no Treaty provision specifically addressed the procedures for fixing and allocating fishing opportunities. Instead, the third subparagraph of Article 37(2) EC provided, with respect to the CAP: ‘The Council shall, on a proposal from the Commission and after consulting the European Parliament, acting by a qualified majority, make regulations, issue directives, or take decisions, without prejudice to any recommendations it may also make.’
166. That provision was the legal basis for the 2002 Basic Regulation. It was Article 20(1) of that regulation which set out the procedure for deciding (without the involvement of the Parliament) ‘… on catch and/or fishing effort limits and on the allocation of fishing opportunities among Member States as well as the conditions associated with those limits’: those measures had to be adopted by the Council acting by qualified majority on a proposal from the Commission. Article 20(4) provided that the Council was also to establish ‘… the fisheries opportunities available to third countries in [EU] waters and allocate those opportunities to each third country’.
167. A comparable distinction between procedures is now found in the Treaties (which make no distinction, however, based on whether fisheries opportunities are fixed for third countries rather than for the Member States).
168. In fact, the wording used in Article 43(3) TFEU is very similar to that of Article III‑231(3) of the Treaty Establishing a Constitution for Europe: (86) ‘The Council, on a proposal from the Commission, shall adopt the European regulations or decisions on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.’ Unlike Article 20 of the 2002 Basic Regulation, the text of that provision made no reference to ‘the conditions associated with those [catch and fishing] limits’.
169. Whilst there may thus be scope to interpret Article 43(3) TFEU as covering measures other than the actual decision on who can fish what and where, measures that are a prerequisite to that decision are, in my opinion, not covered under that provision.
170. I consider that the Commission was right that, under EU law and international law, access of Venezuelan vessels to EU waters required a form of international title. Against that background, the Council cannot exercise its competence under Article 43(3) TFEU and the Commission cannot issue fishing authorisations, without the prior decision of the EU to forego its sovereign right over the EEZ. Unless and until Venezuela is given access to EU waters in order to fish there, there can be no fishing opportunities to fix. The international title was a prerequisite for the Council to exercise its competence to adopt measures on fixing and allocating fishing opportunities to Venezuela.
171. Therefore, the Decision could not itself have been based on Article 43(3) TFEU. The connecting term used therein cannot be so broad as to cover measures without which there are no fishing opportunities to fix and allocate. It follows that the legal basis of the Decision should have been Articles 43(2) and 218(6)(a)(v) TFEU; and the consent of the Parliament was needed before its adoption. I therefore conclude that the first plea in Case C‑103/12 and the first and second part of the first plea in Case C‑165/12 should be upheld.
Statement of contradictory reasons for choice of legal basis (third part of the first plea in Case C‑165/12)
172. The third element of the Commission’s first plea as formulated in its application is that the Council erred both in its statement of reasons for its choice of the legal basis and in failing to consult, contrary to the spirit of Article 295 TFEU, the Parliament and the Commission as regards its choice. The Decision does not explain why a declaration granting access to EU waters should be seen as a measure fixing fishing opportunities. Indeed, according to the Commission, the statement of reasons is contradictory. The Commission submits that the title of the Declaration expressly refers to fishing opportunities. However, the text of the Declaration concerns granting access to EU waters to vessels that are required to comply with parts of the CFP. This violates the requirement that the reasons for an act of general application must be logical and not show any internal contradiction, as well as breaching the requirement to conduct interinstitutional consultations.
173. In its reply, the Commission appeared to limit the scope of this plea considerably. Thus as regards the first part, it said that it had not argued that the statement of reasons was insufficient or absent. Rather, its position was that the statement of reasons could be considered as having become contradictory as a result of textual changes made by the Council. As regards the second part, it had not argued that this was a separate basis for annulment. The Commission did not develop this plea further, acknowledging that the Parliament made no similar plea.
174. The Council responded that the requirements of the second paragraph of Article 296 TFEU were satisfied because recitals 1 and 2 of the Decision set out the context in which the Decision was adopted and recital 3 defined the object of the Decision, namely to confirm that the EU will grant fishing authorisations to a limited number of Venezuelan vessels. The Council further submitted that the procedure was governed by Article 218 TFEU and not Article 295 TFEU. In any event, the declarations made by the Commission objecting to the Council’s changes to its proposal demonstrate that the Commission was fully involved in the procedure.
175. Based on its application, I understand the third part of the Commission’s first plea in Case C‑165/12 to concern the need to state reasons for legal acts (second paragraph of Article 296 TFEU) and interinstitutional cooperation (Article 295 TFEU).
176. Whilst, on the basis of its reply, the Commission appears to have abandoned this part of its first plea as a basis for seeking annulment of the Decision, I note that failure to state (adequate) reasons constitutes an infringement of an essential procedural requirement which may, and even must, be raised by the Court on its own motion. (87)
177. The duty to state reasons in legal acts laid down by the second paragraph of Article 296 TFEU means that the reasoning of the institution adopting the contested measure must be shown ‘… clearly and unequivocally … so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review …’. The statement of reasons need not go into every relevant point of fact and law. (88) Whether that duty is satisfied depends on the wording of the measure, its content, and the whole body of legal rules governing the matter in question. (89)
178. The difficulty in understanding the third part of the Commission’s first plea lies in the fact that, when considered together with the first and second parts, the Commission seeks annulment of the Decision because, on the one hand, taking into account the content and objective of the Decision, it was adopted on the wrong legal basis and, on the other hand, it contains an insufficient statement of reasons for explaining the wrong legal basis chosen by the Council.
179. In my view, when an EU act is adopted on the wrong legal basis it is neither necessary nor always possible to examine further whether the institution adopting the act stated sufficient reasons for that wrong legal basis. In those circumstances, the use of the wrong legal basis is a sufficient ground for annulment.
180. Should the Court nevertheless decide to address the part of the Commission’s plea based on Article 295 TFEU, I note that the Commission accepts that it was able to express its views and that, in any event, it is clear that the Council sought the opinion of the Parliament and that the Commission was closely involved in the procedure, as evidenced by the repeated declarations that it made. Against that background, I consider that a violation of Article 295 TFEU has not been established.
181. I therefore conclude that the third part of the Commission’s first plea should be rejected as unfounded.
Use of the wrong procedure (second plea in Case C‑103/12)
182. In the event that the Court should hold that the Decision could be based on Article 43(3) TFEU, the Parliament submits that the Council erred in interpreting Article 218(6)(a) TFEU because the Decision should have been based on Article 218(6)(a)(v) TFEU. If EU law prescribes that the ordinary legislative procedure is to be applied for adopting legislative acts necessary to give effect to an EU policy, then international agreements relating to that same policy must necessarily only be concluded after receiving the Parliament’s consent. The fact that some act relating to a specific element of this policy would be subject to another procedure has no impact on the procedure governing the conclusion of the international agreement. That interpretation is confirmed by the fact that the meaning of the word ‘field’ in the English version of Article 218(6)(a)(v) TFEU corresponds with that of the word ‘area’ in the English version of Articles 3, 4 and 6 TFEU.
183. The Council submits that the Parliament cannot have co-decision competence in external relations where it does not have that competence for internal actions. Moreover, the CFP does not constitute a single area because CFP measures concern both the area of exclusive competence within the meaning of Article 3(1)(d) TFEU and the area of shared competence within the meaning of Article 4(2)(d) TFEU.
184. In my opinion, it is not necessary to consider the Parliament’s second plea, because the Decision should have been based on Article 43(2) and Article 218(6)(a)(v) TFEU. Should the Court nevertheless decide to do so, I take the view that it should be rejected for the reasons set out at points 151 and 153 of this Opinion (which concerned the Parliament’s first plea in Case C‑103/12).
Failure to respect the prerogatives of the Parliament (second plea in Case C‑165/12)
185. The Commission submits that the Council failed to respect the prerogative of the Parliament to consent, in accordance with Article 218(6)(a)(v) TFEU, to an act such as the Decision. Moreover, the Commission underlines that it is insufficient to request the Parliament’s consent within a certain period. Other than in circumstances of a simple consultation, the Treaties do not allow the Council to impose a deadline on the Parliament and then, upon its expiry, adopt the decision without the latter’s consent.
186. According to the Council, the Decision was properly based on Article 218(6)(b) TFEU. The Parliament should not have a right to veto external measures where it does not have that right with regard to similar internal measures.
187. It is common ground that the Council did not seek the consent of the Parliament before adopting the Decision. If the Decision was wrongly based on Article 43(3) TFEU and should have been based on Article 43(2) TFEU, it follows automatically that the Decision, in so far as Article 218 TFEU applies to it, must be adopted with the consent of the Parliament. The failure to seek that consent is a breach of the prerogatives of the Parliament.
188. I have concluded that the first plea should be upheld. It follows that the second plea in Case C‑165/12 should also be upheld.
Distortion of the Commission’s proposal (third plea in Case C‑165/12)
189. In the event that the Court should find that the Decision is a measure on fixing fishing opportunities and therefore rejects the first plea, the Commission argues that the Council violated Articles 17 TEU and 218(2) TFEU by distorting its proposal and failing to respect its right of initiative. Whilst Article 293(1) TFEU provides that, in principle, the Council may amend (but only unanimously) a Commission proposal, the Council may not change its subject or objective. In that context, the Commission relies on the Court’s judgment in Case C‑408/95 Eurotunnel and Others. (90) In the present case, the Council made fixing fishing opportunities the object of the proposal. The result is that the Council adopted a decision as if there had been no Commission proposal.
190. The Council submits that neither the Commission’s right of initiative nor the Council’s right to decide are absolute. It cannot be that each time the Council changes the legal basis of a decision, it automatically distorts the Commission’s proposal and fails to recognise the Commission’s right of initiative. In fact, the Court has previously validated a change of legal basis made by either the Council and/or the Parliament. Any changes to the proposal were made because it concerned a measure on fixing fishing opportunities.
191. The Commission’s third plea is based on the premiss that the Court holds that the Decision, and the Declaration attached to it, was properly based on Article 43(3) TFEU and Article 218 TFEU. If the Court agrees with me that Article 43(3) TFEU was the wrong basis, it need not consider this plea. For the sake of completeness, I shall nevertheless address it briefly.
192. On that premiss, it is for the Commission to initiate the process under Article 218 TFEU and for the Council to adopt the decision approving the instrument.
193. I have already explained that the procedures described in Article 218 TFEU are based on a particular interinstitutional balance of powers which might differ for unilaterally binding declarations as compared to international agreements. (91) Either way, I do not interpret Article 218(6) TFEU to mean that the Council is precluded from deciding not to conclude an agreement or to make a unilaterally binding declaration, or from amending the Commission’s proposal (in accordance with Article 293(1) TFEU). At the same time, as the process under Article 218 TFEU progresses, the Council clearly cannot exercise the right of amendment in a way that would run counter to any earlier decisions and actions that it may have taken within that process.
194. In the present proceedings, it is evident that the Council changed the Commission’s proposal, in particular its legal basis.
195. As I see it, all parties in essence agree that the Commission’s proposal and the revised proposal, which was adopted by the Council, both concerned a measure whereby the EU agrees to grant access for Venezuelan vessels to EU waters. Their disagreement concerns the characterisation of that measure under Article 43 TFEU and, as a result, its legal basis.
196. Thus, if the Decision was properly based on Article 43(3) TFEU and Article 218 TFEU, what the Council did was, in essence, to correct the legal basis used in the Commission’s proposal.
197. It is true that the legal basis of an EU measure is to be based on objective factors, in particular the aim and the content of the measure, capable of judicial review. (92) However, those factors can remain constant but none the less result in a difference of opinion as regards the appropriate legal basis. If, in such circumstances, the Council changes (in the context of the premiss of this plea, rightly) the legal basis, it does not follow automatically that the Council has changed the scope of the Commission’s proposal in terms of subject-matter and objective (as is apparent in the present proceedings).
198. On that basis, I consider that the Council did not exceed its competence to amend the Commission’s proposal. I would therefore reject the third plea in Case C‑165/12 as unfounded.
Request to maintain the effects of the Decision
199. In Case C‑165/12, the Commission asks the Court, on the basis of the second paragraph of Article 264 TFEU, to maintain the effects of the Decision if it annuls it; and to identify those effects. That measure should end either when the Council has, with the Parliament’s consent, replaced the Decision with an act adopted on the proper legal basis or, if the Parliament were not to give its consent, after expiry of a short period during which the Council and the Commission would be able to take the measures necessary as a matter of international law to inform Venezuela of the withdrawal of the Note Verbale and to notify economic operators that their fishing authorisations have been withdrawn.
200. The Parliament did not make a similar request in Case C‑103/12. However, in its reply the Parliament stated that it did not see any obstacle to maintaining the effects of the Decision.
201. No party has objected to this request though not all parties have taken the Commission’s position that the Court should limit the effects of its judgment without setting a period of time in which a new decision should be adopted.
202. I have concluded that the Decision should be annulled. As a result, the basis under EU law (and international law) for Venezuela’s access to EU waters, and thus also the basis for other measures fixing and allocating fishing opportunities and issuing fishing authorisations for Venezuelan vessels, would disappear.
203. Important grounds of legal certainty (93) and the need to avoid serious negative consequences (94) may justify a decision to maintain the effects of an annulled act.
204. It is common ground that the fishing activities of Venezuelan vessels in EU waters contribute considerably to the social and economic development of the processing industry in French Guiana which is dependent on these landings. Whatever the legal basis for that access, a sudden disruption of the longstanding practice of granting access to those waters is likely to have negative consequences on this industry. It may also interfere with the management of fisheries in EU waters.
205. The effects of the Decision should therefore be maintained until the entry into force, within a reasonable period of time, of a new decision adopted on the proper legal basis.
206. In accordance with Article 138(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. The Parliament and the Commission have both applied for costs in their pleadings. Article 140(1) of the Rules of Procedure provides that Member States which have intervened are to bear their own costs.
207. In the light of the foregoing considerations, I propose that the Court should:
– annul Council Decision 2012/19/EU of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana;
– state that, pursuant to Article 264(2) TFEU, the effects of Decision 2012/19 are maintained until the entry into force, within a reasonable period of time, of a new decision adopted on the proper legal basis;
– order the Council to pay its own costs and those incurred by the Parliament and the Commission; and
– order the intervening parties to bear their own costs.